F Arian v David Shaw and Dam Group UK Ltd: 2405980/2022 and others
EMPLOYMENT TRIBUNALS
Case No 2405980/2022, 2408651/2022, 2402386/2023
Between
F ArianClaimant1. David Shaw 2. Dam Group UK LimitedRespondentDate 23 July 2024
JUDGMENT
a. A. The complaint that the claimant was unfairly dismissed is struck out.b. B. All allegations of race discrimination that are not subject to the deposit order are struck out.
REASONS
Introduction
[1]The claimant complains of unfair dismissal. Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than 2 years’ service to make an unfair dismissal complaint. The claimant was employed by the respondent for less than 2 years. Therefore, the claimant is not entitled to bring such a complaint.[2]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint of unfair dismissal should not be struck out. Accordingly, the complaint of unfair dismissal is struck out.[3]The claimant’s other complaint, of race discrimination comprises an allegation of harassment and allegations of detriment for the purposes of a direct discrimination claim. Save in respect of his dismissal, the claimant has been unable to explain how any of the allegations of detriment are because of race nor has he shown even the possibility of any causal link. Accordingly, apart from his dismissal, all allegations of detriment are struck out.[1]The Tribunal was due to hear the final hearing of the claimant’s claims of race discrimination and race-related harassment on 22-24 April 2024. On 22 April 2024, i.e. what would have been the first day of the final hearing, we heard an application by the respondents to strike out the claimant's claims.[2]The application was made on three grounds under rule 37 of the Employment Tribunal Rules 2013, namely:• Rule 37(1)(a) – that the claim was scandalous or vexatious or has no reasonable prospects of success.• Rule 327(1)(c) – for non-compliance with any of the Tribunal Rules or with an order of the Tribunal.• Rule 37(1)(e) – that the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim or response.[3]We granted that application and struck out all the claimant’s claims. We gave oral reasons for doing so. The claimant requested those reasons in writing. Those reasons are set out below. The Employment Judge apologises to the parties for the delay in sending this judgment and reasons. It was delayed so it could be sent out with the reserved judgment on the respondents’ costs application made on 23 April 2024. The Judge’s absences from the Tribunal led to a delay in both judgments being finalised so they could be sent to the parties. Submissions[4]The claimant represented himself. Ms Senior represented both respondents. We heard submissions in relation to the applications from the claimant and from Ms Senior We are satisfied that the claimant has had a reasonable opportunity to make submissions. Interpreter[5]The Tribunal had provided a Farsi interpreter for the hearing at the claimant’s request. However, the claimant made it clear partway through the preliminary discussions at the start of the hearing that the interpreter was no longer required. The interpreter was therefore released at lunchtime. The claimant conducted the remainder hearing in English and we are satisfied that there was no language barrier to his participation in the hearing.
The Relevant Law
[6]Dealing briefly with the relevant law, Employment Tribunal rule 37(2) makes it clear that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or if requested by the party at a hearing. Rule 37(1)(a) – no reasonable prospect of success[7]When it comes to striking out on the grounds that a case has no reasonable prospects of success (rule 37(1)(a), the case law makes it clear that discrimination issues should, as a general rule, be decided only after hearing of the evidence. The questions of law that have to be determined are often highly fact sensitive.[8]In Abertawe Bro Morgannwg University Health Board v Ferguson [2013] ICR 1108 the Employment Appeal Tribunal acknowledged the applications for strike out may in a proper case succeed but warned that in a case which is always likely to be heavily fact sensitive (such as one involving discrimination) the circumstances in which it would be possible to strike out a claim are likely to be rare.[9]In Ahir v British Airways PLC [2017] EWCA Civ 1392 the Court of Appeal however said the Tribunal should not be deterred from striking out claims, including discrimination claims which involve a dispute of fact, if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established. Whether the necessary test is met in a particular case depends on an exercise of judgment. It remains the case, however, that the hurdle for striking out on this ground is high.[10]In the case of Ezsias v North Glamorgan NHS Trust [2007] the Court of Appeal said that an example of a case where a discrimination case may be struck out is where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. Rule 37(1)(c) – non-compliance with Tribunal orders or rules[11]When it comes to the law relating to striking out for non-compliance with Tribunal orders or rule, the case of Bolch v Chipman [2004] IRLR 140 EAT makes it clear that even in a case where the conduct consists of deliberate failures in relation (for example) to disclosure, the fundamental question for any Tribunal considering the sanction of strike out is whether the defaulting party’s conduct has rendered a fair trial impossible.[12]That means that when considering whether to strike out under rule 37(1)(c) there must be a finding that a party is in default and, if so, consideration has to be given to whether a fair trial is still possible. Save in exceptional circumstances, if a fair trial remains possible the case should be permitted to proceed. Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed.[13]The leading authority on striking out for non-compliance of orders is Weir Valves & Controls UK Ltd v Armitage [2004] ICR 371. At paragraph 17 in that case the Employment Appeal Tribunal said that it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default; whether the default is the responsibility of the solicitor or the party; what disruption, unfairness or prejudice has been caused; and still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.[14]Repeated non-compliance is to be deprecated and it may give rise to a view that if further indulgence is granted the same will happen again.[15]In the case of Emuemukoro v Croma Vigilant [2022] ICR 327 the Employment Appeal Tribunal said that the authorities did not support the contention that whether a fair trial is possible is to be determined in absolute terms i.e. in considering whether a fair trial was possible at all rather than just within the allocated trial window. Where a strike out application was considered on the first day of trial, it was highly relevant consideration as to whether a fair trial was possible within that trial window. Where a party’s unreasonable conduct had resulted in a fair trial not being possible within that window, the power to strike out was triggered. Whether the power should be exercised would depend on whether it was proportionate to do so. The proposition that the power could only be triggered where a fair trial was rendered impossible in an absolute sense would not take account of all the factors relevant to a fair trial. Those factors include undue expenditure of time and money, the demands of other litigants and the finite court resources which are consistent with taking into account the overriding objective.[16]Although Croma Vigilant is a case relating to strike out for unreasonable behaviour under rule 37(1)(b), there is nothing to suggest that those same considerations apply under a strike out application under rule 37(1)(c). Rule 37(1)(e) -fair hearing no longer possible.[17]Under rule 37(1)(e) the question is whether a fair hearing is possible or not. Considerations already referred to in the cases above again apply in the context of an application under this rule. In particular, the Tribunal needs to consider whether strike out is proportionate. Discussion and conclusions
Background
[18]By a claim form dated 5 August 2022 (case no.2405980/2022) the claimant brought a claim of race discrimination against the first respondent, David Shaw (“the first claim”). The claim form said that Mr Shaw had humiliated the claimant on a daily basis, called him “fat head” and “baldy”, had shouted at him in from of staff and had “made an illegal disciplinary investigation” against the claimant by making false allegations against him. He also alleged Mr Shaw had put him in charge of shifts at the clinic even though the claimant was not qualified to do so. At the point that claim form was filed, the claimant was still employed by the second respondent.[19]By a claim form dated 30 October 2022 (case no.2408651/2022) the claimant brought a claim against the second respondent (“Dam”) (“ the second claim”). which was still his employer at that point. The only box ticked in section 8.1 of the form was the “another type of claim box”. The claimant said that he had been “discriminated for 1 year”. He said he had been bearing abusive words from his manager (i.e. Mr Shaw) for 1 year but Dam had done nothing about it. He said he had sent constant emails asking for help. There were brief details in section 8.2. The claimant repeated the allegations he had made against Mr Shaw in the first claim and also alleged that Mr Shaw was giving him fewer hours than others. He referred to the fact that he had brought the first claim and that there was due to be a preliminary hearing at the Tribunal in that March 2023 (that preliminary hearing was postponed and relisted for a combined preliminary hearing on the first, second and third claims in June 2023).[20]By a claim form dated 19 December 2022 (2410106/2022) the claimant brought another claim against Dam (“the third claim”). Again he ticked the “other types of claim” box and said the claim was a continuation of the second claim. He said Dam had suspended him from duty on 14 December 2022 with no reason given. The details in section 8.2. did not refer to the suspension but alleged that Dam was using outdated cartridges in PCR tests. The race discrimination box was not ticked on that claim form and the brief details of the claim did not refer to the suspension being discriminatory. We find the suspension referred to was pending the results of the investigation into the allegation which resulted in the claimant’s dismissal. The Tribunal decided to combine that claim with the second claim.[21]The claimant was dismissed on 2 February 2023. By a claim form dated 6 February 2023 (case no.2402386/2023) the claimant brought a claim of unfair dismissal and race discrimination against Dam (“the fourth claim”). The box for race discrimination was ticked in section 8.1. The only details in section 8.2 were “Just dismissed”.[22]On 1 June 2023 Employment Judge Leach held a case management preliminary hearing. It appears that related only to the first, second and fourth claims. He made various orders, including ordering the claimant provide further details of his discrimination complaints. The respondent had indicated they would be seeking a strike out order and/or deposit orders so a public preliminary hearing was listed on 6 September 2023 to consider that application. Employment Judge Leach noted that it was some 45 minutes into that first preliminary hearing that the claimant first said that Mr Shaw had referred to him as “Iranian baldy” and “Iranian fathead”. The claimant was provided with a list of sources of guidance as part of E J Leach’s case management order.[23]At the hearing on 6 September 2023, Employment Judge Batten struck out the claimant’s complaint of unfair dismissal because he did not have the required two years’ length of service to bring such a complaint. She also struck out all the claimant’s complaints under the Equality Act 2010 except his complaint that Mr Shaw had harassed him related to race by calling him “Iranian Baldy” and “Iranian Fatty” and the complaint that his dismissal was an act of direct race discrimination. She made deposit orders in relation to those complaints she did not strike out, finding that they had little reasonable prospect of success,[24]Employment Judge Batten’s case management orders from the 6 September 2023 hearing set out a timetable with steps the parties had to take to prepare the case for the final hearing on 22-24 April 2024. The steps ordered included provision by the claimant of details of his comparators by 13 November 2023 and exchange of witness statement by everyone to give evidence at the hearing by 28 February 2024. The Strike out Application Rule 37(1)(c)[25]We start with the primary ground under rule 37(1)(c), i.e. non-compliance with Tribunal orders.[26]The first question is whether there has been non-compliance. We find that there has. The claimant was ordered by Employment Judge Leach in June 2023 to provide details of the alleged acts of harassment by Mr Shaw, including when they were said, in what context and who witnessed them. The claimant has completely failed to do so.[27]The claimant was also ordered by Employment Judge Leach to provide details of the comparator for his direct race discrimination complaint i.e. the complaint that he was dismissed, or to confirm in the alternative that he was relying on a hypothetical comparator. He has failed to do so.[28]At the second preliminary hearing on 9 September 2023 the claimant was ordered by Employment Judge Batten to provide details of the comparators. This is in essence a repeat of the order already made by Employment Judge Leach in June 2023. The claimant again failed to do so.[29]The claimant was ordered to provide witness statements by 28 February 2024. He has failed to do so to the extent that he has not provided a claimant's witness statement. He provided an emailed statement from one of his witnesses, Arisha Hussain.[30]The end result of those failures on the claimant’s part is that as at the first day of the 3 day final hearing the respondent does not know the details of the allegations of the harassment being brought against then. Beyond the allegation that the claimant was called an “Iranian fathead” and “Iranian baldy” the claimant has not provided any detail of that allegation, e.g. when it took place and in what context. The alleged conduct could have happened at any point during the 18 months or so the claimant was employed. The respondents cannot know, given the absence of details, who might have witnessed it, what the context was, when it happened. That makes it difficult for the respondents to respond and difficult for the respondents’ witnesses to give clear evidence. They are in effect being asked to recall for the whole period of the claimant’s employment whether the incident occurred.[31]The failure to provide details of the harassment incidents is compounded by the claimant's failure to provide a witness statement for himself. In the absence of such a witness statement which might have provided more detail of the complaint, the respondents are not in a position to know what specific allegations they are facing.[32]In terms of the limited witness evidence that has been provided, the statement for Ms Hussain provided by way of an email on 22 April again does not provide any detail or context for when the alleged remarks were made to the claimant.[33]When it comes to the direct race discrimination relating to the claimant’s dismissal, no details of the comparators have been provided.[34]When the claimant was asked why he did not comply with the orders he said in relation to the witness statements that he did not understand that he himself needed to provide a witness statement. We understand that he was saying that he thought witnesses were people other than him. However, we find that the respondents’ solicitor in this case has commendably tried to assist the claimant in understanding what his obligations were. At the absolute latest, by 18 April 2022 the claimant was fully aware that as a claimant he needed to provide a statement. The respondents’ solicitor had by that date told him so in writing in clear terms, quoting the relevant Presidential Guidance.[35]Even if we accept that the claimant did not understand that he needed to provide a witness statement until 18 April, that provides no explanation for his failure to provide the further details of his claim ordered by Employment Judge Leach and Employment Judge Batten.[36]We note that although an interpreter was booked for this hearing, the claimant confirmed at lunchtime that he did not need the services of the interpreter. He had previously volunteered that there was no need for the interpreter service and conducted the case in English. We do not therefore find that a language barrier exists in this case which explains the failure to comply with the orders.[37]In terms of the magnitude of the failing, the failing is fundamental to the fairness of this hearing. The respondents simply do not know the details of the allegations which they must face and refute.[38]We consider whether there could be a fair hearing, and bearing in mind the Croma Vigilant case the question is whether there can be a fair hearing in this Tribunal window. We have decided that there cannot. The respondents, as we say, do not understand the detail of the case they face. We considered, as alternatives to striking out, whether there are documents in the case which could stand as the claimant's witness statement in the absence of an actual witness statement. We have decided there was not. The claim forms in this case do not contain enough detail to allow for the respondents to understand the case they must face and to allow for a fair hearing. That is exactly why Employment Judge Leach ordered the claimant to provide more details of his allegations.[39]From a practical point of view, the respondents’ counsel would be in difficulties in cross examining the claimant because she would not know what evidence was going to be given. That precludes the possibility of (for example) the claimant giving his witness evidence by the Employment Judge asking him questions. The scope of the matters set out so vaguely in the claim forms mean that it would not be possible or fair to take that approach.[40]In those circumstances we have decided that it would not be possible to have a fair hearing in the current Tribunal hearing window.[41]In terms of proportionality, we have considered whether it would be possible to deal with the situation by postponing the hearing. The question for us is whether that would be in accordance with the overriding objective which requires us to deal with cases fairly and justly. We have to bear in mind the draconian nature of a strike out and the importance of a claim being heard. Even taking that into account, however, we have decided it would not be in accordance with the overriding objective to postpone this hearing. We have to bear in mind the prejudice to the respondents of postponing. First, there is the cost of the case being postponed and relisted. There is also the prejudice to the witnesses of the hearing being delayed. The dismissal in this case took place more than a year ago. The harassment will (by definition) have taken place at some unspecified point prior to that. Having checked with our Listing office the earliest date when the case could be relisted would be October or November 2024, which is a further six months on. More realistically, it is likely the case would be relisted in 2025. The forensic prejudice (in other words, the prejudice to the witness evidence) would be increased. Bearing in mind that this is a case where the allegation in terms of the harassment is of a he said/he did not say nature, the forensic prejudice (i.e. the impact on witnesses having to remember what may have been passing conversations) is particularly great. Further delay therefore exacerbates that.[42]As the Croma Vigilant case makes clear, we also have to take into account not only the prejudice to the respondents but the impact on other parties and the Tribunal’s limited resources. If this case was listed for another three days, that is three days when somebody else’s case could not go ahead.[43]We have considered other orders, for example the claimant not being allowed to give evidence and having to rely on the documentary evidence or the evidence of Ms Hussain only – that, however, does not get round the respondents not knowing what the case being brought it.[44]When it comes to only allowing Ms Hussain to give evidence, she being the person who has supplied a witness statement, the claimant was adamant that she could not attend until Wednesday i.e. day three of the hearing. We accept the submission made by the respondents’ counsel that that would not allow the respondents chance to know what the case was until nearly the end of the Tribunal hearing, and it would not enable the respondents’ witness to have a fair go at responding to allegations made against them or in witness evidence. It would also inevitably mean that the Tribunal was not able to give judgment within the current three day window.[45]We find that the claimant has only engaged in a minimal way with the Tribunal process. Granted that he is unrepresented, there is still an onus on him to progress his case or seek help where needed. There is no explanation for the noncompliance with the orders made by Employment Judge Leach and Employment Judge Batten. There is no adequate explanation or reason given not to have provided a witness statement for himself by the start of the hearing when it must have been clear to him at the latest by 18 April 2024 that he needed to do so. The claimant has brought this case and he had a responsibility to move it forward and participate and he has not done so. To use the wording used in Weir, we do take the view that this is a case where there is repeated non-compliance and that if further indulgence is granted i.e. giving the claimant another chance to comply by postponing the hearing, the same will simply happen again.[46]In all those circumstances, our decision is that the claim should be struck out under rule 37(1)(c). Rule 37(1)(a)[47]Moving to the alternative grounds put forward, when it comes to the striking out based on rule 37(1)(a) – i.e. that the claim has no reasonable prospect of success – we accept that the Tribunal has already considered this issue at the hearing conducted by Employment Judge Batten in September 2023. She decided not to strike out the complaints of race-related harassment and the claim that the claimant’s dismissal was an act of direct race discrimination. She instead made deposit orders in relation to those complaints, finding that they had little reasonable prospect of success. The submission for the respondents, however, is that there is now further evidence in front of the Tribunal which means that we can decide that there are no reasonable prospects of success rather than the little prospect of success found by Employment Judge Batten. We deal with the two complaints separately.[49]First of all, the allegation of race-related harassment. We accept that Employment Judge Batten knew already about the inconsistency between the claimant's claim form and the case as he later put it by the addition of “Iranian” to the terms “fathead” and “baldy”. We do however have the advantage of further documentary evidence even though we have not heard any witness evidence. We bear in mind throughout that the initial burden is on the claimant to establish facts from which the Tribunal could conclude that discrimination has occurred. If there is no reasonable prospect of his doing so then it would be appropriate to strike out the claims.[50]When it comes to the harassment claim, we bear in mind that there has been no further specificity of the allegations. The claimant has not provided dates, context or witnesses for the times when he says the comments were made. That in itself undermines the case.[51]In addition, the claimant has only provided one piece of documentary evidence. This was a WhatsApp message where Mr Shaw said, “As your new manager I will harass Faraz”. Ms Senior in her submissions put that message into context. It is part of a string of WhatsApp messages at pages 174-175 of the Tribunal bundle. Having read that as a whole it is clear that that message was part of a jocular exchange between the claimant and Mr Shaw when Mr Shaw was promoted. The messages read as a whole are wholly inconsistent with the message having a harassing effect or having a harassing purpose.[52]Taking that into account, we do find that this is a case where the allegation of harassment is wholly inconsistent with the documentary evidence and unsupported by the other evidence put forward to date. By that we include the lack of specificity of when the incidents took place. On that basis we do find that (exceptional though it is) this is a case where we can say that the harassment allegation has no reasonable prospect of success without having heard the witness evidence.[53]When it comes to the complaint that the claimant’s dismissal was an act of direct race discrimination, we had the advantage of reading the letter of dismissal which serves as the record of the disciplinary hearing. That shows no allegation by the claimant of race discrimination at the time.[54]The claimant in his submission said he accepted there was no discrimination on the part of Mr Stevens, the dismissing officer. He said his allegation was that the allegations leading to dismissal had been made against him by Mr Shaw for discriminatory reasons.[55]Having read the disciplinary outcome letter which the claimant did not appeal, we find that there were clearly incidents which happened and which needed investigating. We find that they coincided with the claimant and only one other person being at the second respondent’s premises. In terms of the claim that false allegations were being made, it seems to us that that is inconsistent with the documentary evidence.[56]In addition, when it comes to the allegation as clarified by the claimant i.e. that Mr Shaw had engineered or fabricated allegations against him which then led to his dismissal, we do accept that there is something in Ms Senior’s submission that the claimant's handwritten note at page 104 (which was his evidence in response to earlier allegations on 23 June 2022) again contradicts his case. That document makes it clear that the false allegations in the claimant's view were made against him by fellow employees who he says do not like the fact that he was the only one on his shift who they had to go to to get something out of stock. There was no allegation there of race discrimination – in fact what is said is that the only person who supports the claimant is Mr Shaw. We accept that that relates to earlier allegations but do find that it is inconsistent with the claimant's case, which is that Mr Shaw discriminated against him by fabricating false allegations.[57]When it comes to the complaint of direct race discrimination, it is also the case as we have already noted, that the claimant has not identified any actual comparator nor has he confirmed whether he is relying on a hypothetical comparator. That again, we find, undermines his case.[58]On balance, even given the strictures in the case law about the need for care in deciding to strike out cases of discrimination as having no reasonable prospects without hearing witness evidence, we do find that this is a case where the allegation of discrimination has no reasonable prospect of succeeding. Had we not already struck out the case on the basis of non-compliance with Case Management Orders, we would therefore have struck out the case on the basis that it had no reasonable prospects of success. Rule 37(1)(e)[59]When it comes to the third ground for the application, which is that it is not possible for there to be a fair hearing, we have already set out in relation to our decision on 37(1)(c) why we take the view that there could be no fair hearing within the Tribunal window allocated to the case. We do also take the view that if a later hearing were listed there would be no possibility of a fair hearing because of the impact of the further delay on the respondents’ witnesses given the lack of clarity about the allegations made by the claimant.[60]In reaching that decision we also take into account the broader factors relating to a fair hearing set out in Croma Vigilant i.e. the need to take into account the needs of other Tribunal users and limited Tribunal resource. Had we not decided to strike out the claimant’s claims on the other grounds, therefore, we would have struck out the claim on the basis that no fair hearing was possible.[61]Our judgment therefore is that the respondents’ application to strike out the claimant's claim on the basis of rule 37(1)(a), rule 37(1)(c) and rule 37(1)(e) all succeed. That means that the claimant's case is dismissed and fails. Reconsideration of our Judgment[62]We gave our strike out judgment with oral reasons at the end of what would have been the first day of the final hearing. The claimant asked for the oral reasons in writing. The respondents applied for costs. We decided it was not in accordance with the overriding objective to hear that costs application at the end of 22 April and directed that the application be considered instead at 12.30pm on 23 April i.e. what would have been day two of the final hearing so that the claimant had time to prepare to respond to it.[63]In preparing these written reasons the Employment Judge became aware of certain documents in the final hearing bundle to which the Tribunal’s attention had not been specifically drawn in submissions. They were page 92 (where the claimant makes complaints against Mr Shaw in November 2021) and a verbal warning issued to Mr Shaw on 27 October 2022. That verbal warning was issued on the basis that it was apparent at times that his managerial style was interpreted as aggressive and intimidating. While the warning acknowledged that might not have been Mr Shaw’s intention, that is how it was perceived. That was said to have contributed to the initial breakdown in relations with the claimant. The warning acknowledged that both named individuals (i.e. Mr Shaw and the claimant) contributed to the situation and no single individual could be held responsible. The warning also noted that due to a number of occasions where communication with staff had been perceived as inappropriate, Mr Shaw would be issued with a verbal warning.[64]We considered whether in the interests of justice those documents meant that we should reconsider our judgment on our own initiative, and in particular our conclusion that the claimant’s claims had no reasonable prospects of success. As recorded in our reasons above, that conclusion was based partly on the fact that the WhatsApp messages to which we had been referred appeared to support the finding that the relationship between the claimant and Mr Shaw was a jocular one incompatible with the claimant's claim that he had been harassed by him.[65]We decided that it was in the interest of justice to reconsider that finding. We gave the parties an opportunity to make submissions about this point on 23 April 2024 when we heard the costs application.[66]Having done so, we accept Ms Senior’s submission that those documents do not alter the position when it comes to the prospects of success. Although the email of 21 November 2021 refers to “stress, humiliation and discrimination at Manchester clinic” in the subject heading and refers to the claimant having been “a victim of cruelty, abuse and discrimination”, it makes no reference to the specific allegation of harassment made by the claimant in his case. It makes no reference to race. The content, in fact, suggests that Mr Shaw treated everyone badly, alleging that he “does not respect any of your staff…he is trying to get all of us out…reduces your staff with daily stress and humiliates us every day”. We also accept Ms Senior’s submission that the investigation letter makes no reference to the allegation against Mr Shaw having been one involving either race discrimination or race-related harassment.[67]Bearing in mind that the burden in a discrimination or harassment case is initially on the claimant to prove facts from which we could conclude that a breach of the Equality Act 2010 had taken place, we find that neither of those documents alter our view about the prospects of success. That is even though it does alter our perception of the friendly nature of the relationship between the claimant and Mr Shaw. It also does not alter our perception of the specific WhatsApp message relied on by the claimant which, as we have said, taken in context does not provide the sort of evidence which could lead us to conclude that discrimination had occurred. At most, what these additional documents say is that the management style of Mr Shaw was perceived to be aggressive and that he made inappropriate comments. It appears he did so to everyone. As we explained to the claimant, even if Mr Shaw had bullied or treated staff unfairly, his claim would fail because he has not shown evidence that any treatment of him was due to him being Iranian or not of British nationality.[68]In those circumstances, although we considered it appropriate to reconsider our judgment, we have decided that it is not in the interests of justice to vary that judgment. The strike out remains.[69]For the avoidance of doubt, if we had decided that our conclusion that the claimant's claims had no reasonable prospects of success was changed by the documents we have referred to, we would still have struck out the claimant’s claim for failure to comply with Case Management Orders under rule 37(1)(c). The Third claim[70]In preparing the written version of the strike out Judgment overnight on 22 April, it became apparent to the Employment Judge that the third claim was not referred to in the bundle for the final hearing and did not appear to have been struck out by E J Batten at the hearing on 6 September 2023. The claimant had lodged that claim against the second respondent on 19 December 2022 following his suspension prior to the investigation of allegations against him. The Tribunal file indicated that there was a proposal to combine that case with claim number 2408651/2022. It is not clear that was ever done. Ms Senior’s instructions when the matter was raised on 23 April 2024 were that it had not.[71]It was not clear to us whether, in striking out all the claimant’s complaints other than that of race related harassment and direct race discrimination in dismissing him, E J Batten had also struck out the third claim. On balance we decided that she had not. The case number was not referred to in her strike out judgment which refers to 3, rather than 4 claim forms. We raised that with the parties in advance of the costs hearing on 23 April so we could hear from them.[72]We decided that it was in accordance with the overriding objective to include the Third Claim in our strike out Judgment. We did not consider it proportionate to list a separate hearing to consider whether to strike out that claim. We were satisfied that it had no reasonable prospects of success. The contents of the Third claim form amounted to a bare statement that the claimant had been suspended for no reason. No comparator was identified and the details in the form itself did not assert that race was the reason for the suspension. The letter suspending the claimant was in the final hearing bundle and made clear that he had been suspended pending investigation of serious allegations against him. There was no evidence to support the claim that the respondent would have acted any differently in the case of an employee against whom serious allegations had been made regardless of their nationality. The decision to suspend was not made by Mr Shaw who was the alleged harasser and there was no suggestion the decision maker had discriminated against the claimant.[73]In those circumstances we decided that it was appropriate to strike out the Third Claim on the basis that it had no reasonable prospects of success and we have included it in our judgment.
Background
[1]The first respondent’s application for costs fails.[2]The second respondent’s application for costs against the claimant succeeds. The claimant is ordered to pay the second respondent £7,200 plus VAT, giving a total of £8,440.
Introduction
[1]The Tribunal was due to hear the final hearing of the claimant’s complaints of race discrimination and race-related harassment on 22-24 April 2024. On 22 April 2024, i.e. what would have been the first day of the final hearing, we heard an application by the respondents to strike out the claimant's claim. We granted that application. We struck out all the claimant’s claims. Our reasons for doing so are set out in our strike out Judgment of today’s date. The Costs Judgment should be read with that strike out Judgment.[2]As we recorded in our strike out judgment, the claimant represented himself in the proceedings. Ms Senior represented both respondents. Although the claimant had requested a Farsi interpreter for the final hearing, he told us during the morning of the first day of the hearing (22 April 2024) that the interpreter was no longer needed. He conducted the remainder hearing in English and we are satisfied that there was no language barrier to his participation in the hearing on either day.[3]We gave the strike out judgment with oral reasons late on the afternoon of 22 April 2024. We did not consider it in accordance with the overriding objective for the claimant to have to respond to the costs application within the short period of time that would be available at the end of that day. We directed that by 10.30am on 23 April 2024 (i.e. the second day of the hearing) the respondents set out their grounds for seeking costs in writing. The respondents had (on 19 April) written to the claimant seeking details of his financial means so that those could be taken into account if a costs application was made. The claimant had not responded. We directed that he do so by 11.30am.[4]The respondents had prepared a costs bundle. It consisted of 94 pages. That was supplemented with documents in an additional bundle provided at the start of the hearing on 22 April. That included exchanges of emails between the parties in the days leading up to the final hearing. We had taken those emails into account in deciding to strike out the claimant’s claims. However, they were also relevant in deciding whether to award costs against the claimant.[5]On the morning of the costs hearing we received the respondents’ submissions on costs, the costs schedule, an email from Mr Shaw explaining the basis on which he claimed £240 in costs and an email from the claimant setting out his financial means. There was a second email from the claimant explaining that he had not lied and asking the Tribunal to give him justice.[6]The second respondent claimed legal costs from the point of issue of the second claim form (which is when it formally became a party to these proceedings). Both the costs schedule it had prepared in advance of the hearing and the revised costs schedule it provided on the morning of the second day of the hearing showed a sum in costs exceeding £20,000. Ms Senior confirmed that the respondents were seeking costs limited to the £20,000 maximum which the Tribunal could award on a summary assessment basis.[7]The basis on which costs were sought were set out in the written application for costs as being:a. That the claimant had acted vexatiously and/or unreasonably in either brining the proceedings or in the way the proceedings were conducted (rule 76(1)(a))b. That the claim had no reasonable prospect of success (rule 76(1)(b)).c. That the claimant had been in breach of an order (rule 76(2)).[8]The first respondent, Mr Shaw, claimed £240. That was on the basis that his daily pay (he is hourly paid) amounts to £120 per day. We clarified with Ms Senior whether Mr Shaw was on a zero hours’ contract meaning that he would not have been paid while he attended the Tribunal hearing. Mr Shaw was not in attendance but Ms Senior took instructions and confirmed that Mr Shaw was salaried. He would therefore be paid holiday pay for days when he was not at work. That meant that he had had to take the first day of the hearing (i.e. 22 April) as holiday. Ms Senior’s instructions were that he had to give 48 hours’ notice to cancel leave. That meant he would have had to take today (23 April) as holiday leave because he would not have had time to notify his employer that he wanted to come back to work. Based on what Ms Senior told us, we find that the first respondent had not lost out financially on the two days when he was attending the Tribunal – he had been paid for those days. He had, however, had to take those days as annual leave.[9]The original costs schedule provided by the respondents divided the costs incurred into phases. We found that helpful because it clarified which costs were incurred before the preliminary hearing carried out by Employment Judge Leach on 1 June 2023 and the hearing carried out by Employment Judge Batten on 6 September 2023 when she struck out the majority of the claimant's discrimination claims and his unfair dismissal claim and made a deposit order in relation to the race-related harassment complaint and the complaint that his dismissal was discriminatory because of race.[10]We heard sworn evidence from the claimant about his financial situation. He was cross examined by Ms Senior and answered questions from the Tribunal. We then heard submissions from Ms Senior. We then heard submissions from the claimant and briefly from Ms Senior in reply. Given the number of issues that we needed to decide, we considered it was in accordance with the overriding objective to reserve our decision.
The Relevant Law
[11]The power to award costs is contained in the 2013 Rules of Procedure. The definition of costs appears in rule 74(1) and includes fees, charges, disbursements or expenses incurred by or on behalf of the receiving party.[12]Rule 75(1) provides that a Costs Order includes an order that a party makes a payment to another party “in respect of the costs that the receiving party has incurred while legally represented”.[13]The circumstances in which a Costs Order may be made are set out in rule 76. The relevant provision here was rule 76(1) which provides as follows: “A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so where it considers that:(a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.”[14]The procedure by which the costs application should be considered is set out in rule 77 and the amount which the Tribunal may award is governed by rule 78. In summary rule 78 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000, or alternatively to order the paying party to pay the whole or specified part of the costs with the amount to be determined following a detailed assessment.[15]Rule 84 concerns ability to pay and reads as follows: “In deciding whether to make a costs, preparation time or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representative’s) ability to pay.”[16]It follows from these rules as to costs that the Tribunal must go through a three stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage.[17]The case law on the costs powers (and their predecessors in the 2004 Rules of Procedure) include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82.[18]An award of costs is compensatory and not punitive so there should be an examination of what loss has been incurred by the receiving party.[19]“Vexatious” was defined by Lord Bingham in Attorney General v Barker [2000] 1 FLR 759 and cited with approval by the Court of Appeal in Scott v Russell [2013] EWCA Civ 1432 in relation to costs awarded by a Tribunal: “The hallmark of vexatious proceedings is…that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant…”[20]In determining whether to make an order on the ground that a party has conducted proceedings unreasonably, a Tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct — McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA. However, this does not mean that the circumstances of a case have to be separated into sections such as ‘nature’, ‘gravity’ and ‘effect’, with each section being analysed separately. The vital point in exercising the discretion to order costs is to look at the whole picture. The Tribunal has to ask whether there has been unreasonable conduct by the paying party in bringing, defending or conducting the case and, in doing so, identify the conduct, what was unreasonable about it, and what effect it had. This process does not entail a detailed or minute assessment. Instead the Tribunal should adopt a broad-brush approach, against the background of all the relevant circumstances: Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA.[21]In assessing the conduct of a party, it is appropriate for a litigant in person to be judged less harshly in terms of his or her conduct than a litigant who is professionally represented. An employment tribunal cannot, and should not, judge a litigant in person by the standards of a professional representative: AQ Ltd v Holden 2012 IRLR 648, EAT. That does not mean that that lay people are immune from orders for costs: a litigant in person can be found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[22]Whether or not a party was acting on legal advice is a relevant but not a decisive factor. It is something that this tribunal can take into account in deciding whether the party’s conduct is unreasonable: Clarke t/a Marine Chart Services v Davenport and Bull EAT 1120/96.[23]It is not unreasonable conduct per se for a claimant to withdraw a claim before it proceeds to a final hearing: McPherson v BNP Paribas. The critical question is whether the claimant withdrawing the claim has conducted the proceedings unreasonably, not whether the withdrawal of the claim is in itself unreasonable. The same applies where there is a late withdrawal of a claim. It is not necessarily unreasonable conduct to withdraw a claim at a late stage in proceedings.[24]In Radia v Jeffries International Ltd [2020] I.R.L.R. 431, paras 62-64 HHJ Auerbach in the EAT gave guidance on rule 76(1)(b) and its interaction with rule 76(1)(a): “62. At the first stage, accordingly, it is sufficient if either Rule 76(1)(a) (through at least one sub-route) or Rule 76(1)(b) is found to be fulfilled. There is an element of potential overlap between (a) and (b). The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal's view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did……. 64. This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?”.[25]In Radia (paras 67-69) HHJ Auerbach set out the correct approach in assessing whether a claimant knew or ought to have known or appreciated that the complaint had no reasonable prospect of success from the start. He stresses the need for the Tribunal to focus on the question of how things would have looked at the time when the claim began. It may, and should, take into account any information it has gained and evidence it has seen by virtue of having heard the case in deciding that question. It should not have regard to information or evidence not available at the time. The mere fact that there were factual disputes which could only be resolved by hearing evidence does not necessarily mean that the Tribunal cannot properly conclude that the claim had no reasonable prospect of success from the outset, nor that the claimant should have known or appreciate that from the outset. That depends on what the claimant knew , or ought to have known, were the true facts and what view they should have taken of the prospects of the claim in light of those facts. Findings of Fact
Background facts
[26]We have set out the background facts in our Strike Out Judgment and do not repeat them here. In summary, by the start of the final hearing on 22 April 2024 the claimant had filed four claim forms. Other than a complaint of race-related harassment and a complaint that his dismissal was an act of direct race discrimination, his complaints had been struck out by E J Batten following a hearing on 6 September 2023.[27]On the first day of the hearing we struck out the claimant’s claim. Our reasons for doing so are set out in our strike out judgment. They included a finding that the claimant had failed to comply with case management orders. The result of that noncompliance was that a fair hearing was not possible in the allocated hearing window. It also included a finding that neither claim had any reasonable prospect of success. Negotiations and Costs Warning[28]On 12 October 2020 in wake of the Employment Judge Batten preliminary hearing the respondents invited the claimant to withdraw his claim. The letter said that the respondents (we find reasonably) estimated its costs to be around £7,000- £10,000. The letter was written by the solicitor for the respondents who attended the preliminary hearing before Employment Judge Batten. It referred to Employment Judge Batten having made it clear at the hearing that the 2 complaints that remained after her decision to strike out were “the thinnest of claims” and that she had come very close to striking out all of the claimant’s complaints. The claimant accepted that Employment Judge Batten had made that observation or used words to that effect at the hearing in September 2023. We find that as at that point the claimant could have been in no doubt that his remaining claims had little reasonable prospect of success because Employment Judge Batten made deposit orders in relation to them saying that that was the case.[29]The claimant paid the deposits so the complaints proceeded.[30]In the letter of 12 October 2020 the respondents made it clear that if the claimant did withdraw his claim they would not at that point pursue costs.[31]We find that the respondents subsequently, on 4 March 2024, made an offer of settlement on the basis that it would pay £2,500 and not pursue the claimant for costs if he withdrew his claim. That offer was repeated on 19 April 2024.[32]The respondents argued that the claimant in this case had acted vexatiously. We do find that at final hearing bundle pages 108 and 110 there was evidence that the claimant had said to the respondents that he wanted the first respondent sacked from the clinic and to get compensation from him. Page 110 was an email from Mr Shaw reporting that the claimant had been telling other employees that Mr Shaw was going to be sacked. At page 91 of the costs bundle in an email responding to and rejecting the proposal to withdraw his claim in return for no costs order being sought (page 91) the claimant referred to Mr Shaw as an “abnormal human being” and his having “savage behaviour”. Although the claimant told us in evidence that his sole purpose in bringing the claim was to get his job back, we do not accept that is the case. His first three claim forms were sent in before his dismissal. The first claim form against Mr Shaw was sent in before the allegations, suspension and investigation which led to his dismissal had been instigated. As Ms Senior pointed out, the claim forms all referred to seeking compensation. We do not, therefore, accept that the only reason the claimant brought his claim was to defend himself, clear himself of false allegations or to seek to get his job back. It is clear from his earlier claim forms that he was seeking compensation and seeking compensation from Mr Shaw individually. Taken with the comments we have alluded to, we find that the claimant did have an animus against Mr Shaw personally.[33]Once the proceedings had started, the claimant was told by Employment Judge Leach at the preliminary in June 2023 to consider his position in relation to the harassment allegation (paragraphs 20 and 22 of his Case Management Order at page 62 of the final hearing bundle). It is also in that Case Management Order that Employment Judge Leach notes that the claimant's position had changed with his allegation that Mr Shaw had said “Iranian fathead” and “Iranian baldy head”, something which he had not included in his claim form. At the hearing today, the claimant said that he did not understand he needed to be that detailed. We do not find that that is plausible as an explanation. We are not talking about the addition of significant details to a claim but the addition of the one word which would make the allegation one explicitly linked to the claimant’s race. The claimant did not do that until the claim was being discussed and the basis for a discrimination and harassment claim explained by Employment Judge Leach at the preliminary hearing. The Claimant's Means[34]We heard evidence from the claimant about his financial situation. The claimant is married and he and his wife both work. They have no children. They both work on zero hours’ contracts so their pay does vary on a monthly basis. We find that on a monthly basis the household income varies from between £2,400 to £2,900. The claimant has various loans and credit card debts. He is repaying an advance paid by the DWP of £1,700 at the rate of £5 per month. He receives a maintenance loan because he is studying journalism on a part-time basis. We accept his evidence that the loan for this year has already been spent. The claimant and his wife own their home. When it was bought in 2021 the claimant and his wife paid £176,000 for it. They paid around 10% deposit and there is currently around £158,000 left on the mortgage. It is notoriously difficult to assess the value of a property. The claimant and his wife have carried out certain home improvements for which they are still repaying the loan at the rate of £338 per month. There are 24 years left on the mortgage but it seems plausible that there is some equity in the property.[35]In terms of the total outgoings, they amounted to around £2,200. Ms Senior suggested that the claimant and his wife’s disposable income would vary between £180 and £600 per month. The claimant's evidence was that in some months they would be overdrawn by the end of the month and in some months they would be in credit. The claimant and his wife do not currently receive Universal Credit but have received it in the past. The rate of their earnings means they do not currently receive it. In fairness to the claimant, we noted that there were certain payments which were not included but which the claimant confirmed he made. That included payment of council tax and credit card debts to which we have referred.[36]Taking the figures supplied by the claimant in the round we find that as a basis for our decision it would be reasonable to assume an average figure of £200 per month disposable income available to the claimant and his wife after payment of their outgoings.[37]The claimant is towards the end of his first year of a journalism course at university. Ms Senior suggested that once he had completed that degree, his potential earnings would increase. We find that it is unlikely that the claimant's earnings would significantly increase over the next few years. We do not think that it is credible to say that once he has completed his degree the claimant’s income will necessarily significantly improve given the competitive nature of the journalistic industry. We accept that some of the claimant's outgoings (such as his current car loan) will come to an end in the next two or three years. It seems to us plausible, however, that the claimant and his wife will need to take out further loans, for example for a new car in a few years. We accept that the claimant's lifestyle could be described as comfortable in the sense that he mobile phones and a laptop and the claimant and his wife give to charity. We do not think, however, that there are any items of expenditure which could be described as unreasonable or exorbitant.
Discussion and Conclusions
[38]The first thing we had to decide is whether the conditions are met for potentially making a costs order. Whether the claimant acted vexatiously in brining proceedings[39]Ms Senior submitted that the claimant had acted vexatiously. We accept her submission that part of the aim of the proceedings was to specifically get at Mr Shaw. We did not accept the claimant's submission that he only brought the claims to get his job back and defend the false allegations against him. The first claim form brought against Mr Shaw is about behaviour by Mr Shaw rather than any allegations brought by Mr Shaw against the claimant. All the claim forms include a request for compensation including those preceding his dismissal. The claimant’s email at page 108 also refers to wanting compensation and wanting Mr Shaw sacked. We accept that part of the claimant’s intention was to subject Mr Shaw (and by extension the second respondent) to inconvenience, harassment and expense. We find that the claimant did act vexatiously in bringing the claims. Whether the claimant acted unreasonably in bringing proceedings[40]We find that the claimant also acted unreasonably in bringing the proceedings because he knew our ought to have known that the complaints had no reasonable prospects of success. The claimant would have had access to knowledge of all the events and emails and other exchanges in this case when he brought his claims. As we have said, we find that the claimant’s case that he was treated less favourably due to race or subjected to race-related harassment is contradicted by the content of those documents. As we have noted previously, the claimant’s allegation of harassment only shifted from a non-nationality specific one to one specifically including “Iranian” at the first preliminary hearing before Employment Judge Leach. We find that the claimant was aware from the start that his claim of discrimination and harassment had no reasonable prospect of success. We are not saying that the claimant had no grounds to be aggrieved We do find that the issuing of a verbal warning to Mr Shaw provides support for the fact that his management style was in some ways problematic. However that warning, and even the claimant's own complaints about his behaviour, make it clear that he treated everyone in that way rather than just the claimant. There was no element of different treatment because of race or of race related harassment. When it comes to the dismissal, the claimant himself acted that the dismissing officer did not act in a discriminatory way. We find the claimant knew or should have known that his claims had no reasonable prospect of success and acted unreasonably in bringing them.[41]We do acknowledge that Employment Judge Batten did not strike out all the claimant’s claims in September 2023. We do not think that that is inconsistent with our conclusion that the claimant knew or ought to have known that his claims had no reasonable prospects of success from the start of the proceedings. We remind ourselves that the question is whether the claimant knew or appreciated or should have known that the claim had no reasonable prospects of success from the start given what he knew about the true facts of the case. The assessment carried out by Employment Judge Batten was based on the limited materials before her. The claimant knew everything that had happened and had access to relevant documents. This was not a case where the true position would only have become clear to the claimant only on disclosure of documents. Whether the claimant acted unreasonably in conducting proceedings[42]We also find that the claimant acted unreasonably in the way he conducted proceedings. As we recorded in our strike out Judgment, he failed to comply with any of the Case Management Orders made against him in terms of clarifying the claims and failed to supply a claimant's witness statement. The correspondence between the parties shows the respondents’ solicitors making efforts to cooperate and explain the claimant's role in proceedings but despite this, he failed to comply. We do find that that failure was unreasonable. In doing so we take into account the fact that the claimant was not legally represented. However, the things he failed to do, like supply details of the allegations of harassment, are not matters requiring legal knowledge. Instead, they required the claimant to set out the facts of his own allegations. The claimant at this hearing said that the comments were being made “every day”. We do not find that plausible given he never asserted that before the hearing but in any event, if that was the case the claimant should have written in response to Employment Judge Leach’s order to make it clear that was the case. He did not do so.[43]The respondents also submitted it was unreasonable for the claimant not to settle the claim or accept the respondents’ offer to withdraw the claim on the basis that no costs order would be sought. The respondents suggested that the claimant should have been aware that his claim had no reasonable prospects of success because of what they said in their response forms. We do not find that that is so. We can understand why a claimant would be reluctant to accept an assertion in a response form that the claimant's claim had no reasonable prospects of success. As we have said, however, we find that the claimant knew or should have known from the start that his claim had no reasonable prospect of success.[44]In case we are wrong about that, we considered whether there was a point during proceedings where that should have become evident to the claimant. We consider that Employment Judge Leach made it clear at the hearing in June 2023 that the claimant's case was a weak one. We certainly conclude that at the time the strike out and deposit orders were made by Employment Judge Batten the claimant was clearly on notice that his remaining claims were weak. He himself agreed that Employment Judge Batten had referred to them as being the “thinnest of claims” (or words to that effect). We do find in those circumstances that it was unreasonable for the claimant to continue with his claim and reject the offer to withdraw his claim in return for the respondent not seeking costs set out in the costs warning of 12 October. Even if it is arguable that the costs warning on 12 October is somewhat long and convoluted, the offer to settle the claim for a payment of £2,500 made in March is very clear. We find the claimant did act unreasonably in refusing that offer given by that point he had a very clear indication from Employment Judge Batten about the weakness of his case. Had we not decided, therefore, that the claimant had or should have been aware that his claim had no reasonable prospects of success from the start, we would have found that he should have known that from Employment Judge Batten’s deposit order and strike out order or, at the latest, from the costs warning dated 12 October 2023. Did the claim have no reasonable prospect of success (rule76(1)(b)[45]Given our conclusions above, we also find that the claim had no reasonable prospect of success so the condition for making a costs order under rule 76(1)(b) is made out. Was the claimant in breach of an order (rule76(2))[46]As we made clear in our Strike Out Judgment, the claimant was in breach of the orders of both Employment Judge Leach and Employment Judge Batten. Are the grounds for exercising the power to award costs made out?[47]Our decision is that there are grounds for making an order under all 3 grounds set out in the respondents’ application. Because our finding in relation to rule 76(1)(a) is that the claimant acted vexatiously and unreasonably both in bringing proceedings and in the way he conducted proceedings, any costs order we make may include all the costs incurred by the respondents from the start of proceedings. Is it just and equitable to make a costs order?[48]We need to consider whether it is just and equitable for us to exercise the power to make a costs order in this case. We have taken into account the fact that the claimant is not legally represented. As we have made clear, however, our findings in this case are that the claimant knew from the start of the proceedings that his claims were misconceived because the necessary element of discrimination on which they were based were not made out. Again, we repeat that we are not saying that everything that Mr Shaw or the second respondent did was right. What we are saying is that the claimant knew that the treatment of him was not related to his race.[49]The claimant suggested that the fact that both respondents (and specifically Mr Shaw) had access to legal representation meant that it was not fair and that he had not had access to justice. The claimant submitted that if a party was at risk of costs for bringing a claim to the Tribunal then no-one would bring a claim. As we explained and as we reiterate here, it is not the case that a party will be liable for costs if they bring an unsuccessful Tribunal claim. Such an order will only be made where a party has acted in ways set out in rule 76. The claimant referred to the absence of CCTV evidence which he said would have proved his claim. In essence, part of the claimant's submissions was that it was unfair that he had never had a chance to have his case heard. The point is that it is his own behaviour which has caused that to happen both in bringing proceedings and in the way he conducted proceedings.[50]In deciding whether to make a costs order we need to take into account the claimant's means. As we have said, we have found that the claimant had on average disposable income of around £200 per month. We accept that that is the amount after what might be called “fixed expenses” and does not take into account, for example, socialising or other aspects of daily life. It does include the amount the claimant estimated he and his wife spent on groceries. We do accept that the claimant has limited ability to pay. We do not think, contrary to Ms Senior’s submission, that his earning capacity is likely to significantly increase over the next few years even when he does complete his journalism degree. We accept that by making a costs order we are saddling the claimant (and by extension his wife) with a further debt. On the other hand, the reason we have ordered the costs is because of the claimant's conduct in bringing the claim and conducting the claim. We have to bear in mind that we need to be fair to both parties. The respondents have incurred significant legal costs in defending this claim. That is so even though the Tribunal itself and the respondents gave the claimant abundant warning that his claim had little or no reasonable prospect of success. The claimant should have had no doubt from the respondents’ costs warning letter of 12 October that there was a risk that he would be ordered to pay costs if he did proceed to the full hearing.[51]Taking all those matters in the round, we have decided that it is appropriate to make an order for costs in this case. The amount of the costs order – the second respondent[52]In deciding the amount to award to the second respondent, we have taken into account the claimant's ability to pay. The claimant provided details about his assets and income and expenditure, and we find it is in accordance with the overriding objective to do so. The case-law authorities make it clear that it is not our role to assess the rate at which the claimant would be able to pay any amount nor necessarily to strictly limit our costs order to the amount that the claimant is able to pay. We do need, however, to have some basis on which to calculate the amount which should be ordered.[53]Taking as an average the figure of £200 disposable income per month, we find that the appropriate figure of costs to award is one which the claimant would be in a position to pay without that extending too far into the future. We decided that the appropriate period would be a period of three to four years. We stress that we are adopting a broad brush approach but it seems to us that using £200 as a monthly figure that equates to £2,400 a year. Over three years that amounts to £7,200. We considered that it was appropriate to add the VAT element to that and therefore the amount we are awarding is £7,200 plus VAT of £1,440 giving a total payable by way of a costs order to the second respondent of £8,640. That represents around a third of the second respondent’s costs of the whole proceedings. We find that that is the proportionate figure taking into account the claimant's ability to pay and the other factors in the case.[54]We order those costs on the basis that had the claimant not acted vexatiously and unreasonably in bringing his claim, the second respondent would not have incurred these legal costs.[55]For the avoidance of doubt, if we are wrong that the claimant knew throughout that his claim was misconceived and had no reasonable prospect of success, we would have based our calculation on him being in that position from the point where Employment Judge Batten made her deposit order and gave the strongly worded indication that the remaining claims were very close to being struck out. Had we limited the costs payable to the second respondent to that period of time we would have awarded the same amount. The actual amount incurred by the second respondent from that point on exceeded £15,000. The first respondent’s application for costs[56]When it comes to the first respondent, Mr Shaw’s claim, Ms Senior explained that that was a claim being brought under section 75(1)(c) i.e. for an order that the claimant make a payment to “another party or a witness in respect of expenses incurred, or to be incurred, for the purposes of or in connection with an individual’s attendance as a witness at the Tribunal”. We have decided not to make an award in favour of Mr Shaw. It does not seem to us on the evidence that he has incurred any costs. We accept that he has lost the ability to enjoy a day’s holiday because he had to use up holiday to attend the first day of the hearing. Financially, it seems to us he has not lost out and we do not, in those circumstances, understand how it can be said that he has “incurred expenses”. We also take the view that when he attended on the first day of the hearing he was attending in his capacity as a party and not a witness. There could have been no expectation, it seems to us, that he would have been giving evidence on that first day. He did not in fact do so. He did not attend on the second day. In those circumstances, even if he had to take that day as a holiday, he did not have to spend his holiday attending the Tribunal. Since he is salaried, we do not think this is a case where he has lost wages or pay.[57]In those circumstances we refuse the application for a costs order in favour of the first respondent.