Mr L Hermitt v Trafford Council: 2409171/2021
JUDGMENT
It is the unanimous judgment of the Tribunal is that:[1]The claimant’s complaints that he was dismissed in accordance with s95(1)(c) of the Employment Rights Act (ERA) is not upheld and accordingly his claims of unfair dismissal under sections 94 and 98 and of automatically unfair dismissal under section 103A of the ERA do not succeed and are dismissed.[2]The claimant’s complaints under section 47B of the ERA are not upheld and are dismissed.[3]The reasons for not upholding the complaints are substantially the same as the reasons why the claimant was ordered to pay a deposit of £300 by Tribunal Judge Sharkett in an order under Rule 39 of the Employment Tribunal Rules of Procedure dated 14 June 2022. The claimant has not shown that he acted reasonably in pursing his claim for constructive dismissal and accordingly under Rule 39(5)(b) the deposit shall be paid to the respondent. Case No. 2409171/2021REASONS
[1]There is no reasonable prospect of the original decision being varied or revoked. My reasons for reaching that conclusion are set out below.[2]The claimant's original application sent on 13 July 2023 runs to some 23 pages and has a number of exhibits attached to it. However, the application fails to identify why the claimant says it is in the interests of justice for the decision to be reconsidered. The application is also somewhat difficult to follow, both in terms of understanding the legal factual arguments which are being made in relation to the original Tribunal Judgment because the claimant's linguistic style can sometimes be somewhat opaque.[3]In response to the original reconsideration application Employment Judge Cookson directed that the claimant be required to explain the grounds on which he said the application was necessary in the interests of justice, and he was encouraged to explain his grounds of application briefly and using straightforward language.[4]The claimant responded to that request with a five page document on 23 August 2023. The fact it is shorter is helpful, but the grounds for the reconsideration itself are still somewhat difficult to discern.[5]In broad terms, the claimant's grounds for applying for reconsideration appear to be:(1) his belief that his claim has not been fully addressed, that it was wrong to find that he had not made a protected disclosure, and that the Tribunal has not properly considered the regulatory implications of him being a registered social worker; and(2) that there is new or additional evidence which should be considered.[6]Written reasons for the Tribunal’s Judgment in this case were not requested.[7]At the original hearing, the Tribunal considered complaints of detriment under section 47B of the Employment Rights Act 1996 (“ERA”) and automatically unfair dismissal under section 103A of the ERA. These claims had been subject to a deposit order made by Employment Judge Sharkett at a hearing on 1 June 2022. One of the reasons why the deposit order was made was that at the hearing before Employment Judge Sharkett the claimant had been unable to properly identify what information he had disclosed.[8]At the outset of the final hearing further time was spent seeking to understand on what basis the claimant says he had made a qualifying protected disclosure, colloquially known as “blowing the whistle”. Considerable time was spent seeking to understand the claimant's case in this regard, but we continued to have a significant lack of clarity about the claimant's case. The claimant suggested that he had made a disclosure of information which tended to show a breach of the Care Act, although the claimant was unable to explain to us in any meaningful sense what legal obligations he believed had been breached.[9]In terms of the information which had been disclosed, the claimant told us that he had told a lawyer acting for the Greater Manchester Mental Health Trust (to whom the claimant had been seconded) that she should have seen some earlier statements that he had produced. Despite extensive efforts by the Tribunal, this was the best that we could do. However, the claimant failed to explain to us what the difference was between the statements and what the significance of those differences might be in terms of a breach of legal obligations.[10]The tribunal unanimously concluded that the claimant had not established that he had made a protected disclosure and that his claim for unfair dismissal was not well founded. His claims were dismissed.[11]In the application for reconsideration the claimant has identified five steps which the Employment Tribunal must take to identify if there has been a qualifying protected disclosure, but his application still fails to address the questions of what information had been disclosed and why the claimant believed that that disclosure tended to show a breach of a legal obligation and tended to show a breach of one of the relevant matters in section 43B(1)(a)-(f) ERA.[12]In the application for reconsideration the claimant also refers to “a suppression concealment of information”, but this was not referred to this at the hearing before the Tribunal and the claimant has not explained why not.[13]In this application the claimant has referred to the relevant legal issues for the Tribunal to address, the information he has provided still fails to identify precisely what the claimant is relying on. At paragraph 117 he says this: “The claimant has referred to the production of an inquest report towards an inquest matter he produced October 2019. At his meeting a year later 15.10.20, he had disclosed to the existence of such earlier report which said mentioned his concerns that may have made a difference at the time with the patient.”[14]That appears to be a different case from the one he presented at Tribunal, but he cross-refers to a number of documents which were included in the original Tribunal bundle (pages E98-E103). There is no explanation as to the claimant did not refer to these documents if they were relevant or why he had not applied to amend his claim if he wished to present his claim in a different way.[15]In the circumstances, there is no reasonable prospect of the original decision that the claimant had failed to show that he had made a qualifying protected disclosure, being varied or revoked. Accordingly, there is also no reasonable prospect of the original decision to dismiss the claimant's claims that he was automatically unfairly dismissed under section 103A and/or that he was subject to a detriment under section 47B being varied or revoked.[16]The other complaint considered by the original Tribunal panel was that the claimant had been unfairly constructively dismissed. In the original Judgment that complaint was dismissed because the Tribunal found that the claimant had failed to meet the burden of proof to show that he had been dismissed in accordance with section 95(1)(c) – namely that he had terminated the contract under which he was employed with or without notice in circumstances in which he was entitled to terminate it without notice by reason of the employer’s conduct. This is what is commonly known as a constructive dismissal.[17]The reconsideration application alludes at various points to issues which the claimant had relied upon in relation to his constructive dismissal complaint. However, the arguments are difficult to follow. It seems in essence that what the claimant says is that he thinks the Tribunal made the wrong findings of fact. The Tribunal panel made findings of fact based on the evidence before it and on the balance of probabilities. It is perhaps inevitable in litigation that the losing party will be dissatisfied with the outcome, but that is not a reason to allow an application to re-litigate the matter. An application for reconsideration requires a judicial decision that it is in the interests of justice to look at the case again. Although rule 70 allows Employment Tribunals a broad discretion in this regard, the discretion must be exercised in a way which has regard not only to the interests of the party seeking the review or reconsideration but which also has regard to the interests of the other party and to the public interest in there being finality of litigation where possible.[18]At the final hearing in this case the Tribunal panel did our best to consider all of the evidence before us and reach relevant findings of fact on the basis of the information which the parties had provided to us.[19]The claimant has not explained on what basis he suggests that the Tribunal applied the law in relation to constructive dismissal incorrectly or why he says our findings were perverse.[20]For example, in the reconsideration application the claimant refers to his suspension which was something he relied upon as amounting to a breach of trust and confidence. The Tribunal panel found that in relation to the authorisation for the claimant's suspension, the respondent had not demonstrated that it had fully complied with its own procedures when the claimant was suspended by a senior employee of the NHS Trust that the claimant had been seconded to. However, we accepted that the respondent had been involved in the suspension and the claimant had been informed of the reasons for it. The claimant accepted that the concerns raised about his conduct were very serious. We were not satisfied on the basis of the evidence before us that the claimant had shown that the procedure was contractual in nature, and although we were not satisfied that the procedures had been properly adhered to, we concluded that the breaches which had occurred did not amount to fundamental beaches of the implied term of trust and confidence.[21]Further, on the basis of the evidence before us, and in particular the claimant's detailed resignation letter, we concluded that the circumstances of his suspension, which had occurred some 9-10 months before his resignation, had not been a influencing factor on his decision to resign and in any event the delay between the suspension and resignation meant that any breach of contract which had occurred had been waived by the claimant.[22]In the circumstances there is nothing in the reconsideration application which suggests that the Tribunal’s conclusions in relation to the above matters are wrong such that the claimant's claim that he was constructively dismissed should succeed. This is also true of other issues referred to in the application for reconsideration. The Tribunal made findings about the claimant's grievance, the provision of the risk assessment tool and the last straw. In circumstances where it is difficult to discern the grounds on which the claimant says the Tribunal’s decisions about these matters were wrong and should be decided differently, it is difficult to comment in detail, but the Tribunal made findings about each of these matters and concluded, on the balance of probabilities, that the claimant had not shown that there had been a fundamental breach of contract, whether from a single event or when taken cumulatively, such that the claimant was entitled to resign and treat himself as dismissed.[23]In particular, although this position does not appear to be consistent with the grounds of reconsideration, the claimant had told us that the last straw which had led to his dismissal had been the contents of the investigative disciplinary report which had shown that his managers had raised concerns about him which he had been previously unaware of. In the section in the application for reconsideration headed “Last Straw” the claimant refers to the authorisation for his suspension and the risk assessment tool issue, that is the fact that the respondent had not disclosed the risk assessment tool used by managers to decide to dismiss him, and he also refers to concerns about the impartiality of the investigation panel members.[24]However based on the evidence presented to the tribunal at the final hearing and most significantly based on the contents of the claimant's resignation letter and what he told us at the final hearing, we found that the reason the claimant had resigned had been contents of the investigation report which referred to concerns raised by the claimant’s managers. We accepted that because these were matters which the investigatory manager considered to be relevant to possible disciplinary action and that it was in accordance with good industrial practice that the investigation report made clear what the concerns were in order that the claimant would have an opportunity to address those concerns during the disciplinary process. That was the last straw which the claimant had identified to us at the final hearing.[25]In terms of other issues which appear to be referred to in the application, at no time at the final hearing, or at previous preliminary hearings, had the claimant raised concerns about the impartiality of the disciplinary panel, and this appears to be an attempt by the claimant at this late stage but without any explanation of why and why it was not referred to earlier.[26]In the circumstances there is nothing in the application which suggests that it is in the interests of justice for the Tribunal to reconsider the conclusions that it made about the reasons for the claimant's resignation and whether he had been constructively dismissed in that regard.[27]Finally the claimant also refers refers to regulatory matters including issues about the regulatory process which has continued after he resigned. It is clear that the claimant is dissatisfied with the way the respondent has dealt with those regulatory matters and the claimant's professional body, but as his concerns about those issues relate to events which happened after his resignation, they cannot be relevant to whether he was constructively dismissed.[28]The claimant also suggests that he was not adequately prepared for the final hearing and seeks now to introduce various documents such as his contract of employment.[29]The Tribunal panel were not satisfied with how the respondent had prepared for this Tribunal hearing. It does appear that the Tribunal bundle had been prepared late and the organisation and format of that bundle presented considerable difficulties for the Tribunal panel. We expressed our dissatisfaction at the time for the unsatisfactory state of affairs, but the claimant told us he wanted to proceed and it does not explain why the claimant himself had not ensured that all of the relevant evidence which he wished to rely on was before the Employment Tribunal.[30]In terms of documents which the claimant has identified which are relevant to his constructive dismissal, the claimant has failed to identify why those documents were not available to him at the time of the final hearing or why he had not brought copies to the final hearing if the respondent had not included them in the bundle. In those circumstances there is little reasonable prospect of the Tribunal changing any of the findings that it made on the basis of documents which the claimant could have produced to us at the relevant time but chose not to. There is no reasonable prospect of the Tribunal varying its decision in those circumstances.[1]Following a hearing between 19 and 23 June 2023, the claimant’s complaints of unfair dismissal and detriment on the ground of a protected public interest disclosure were dismissed.[2]The respondent made an application for costs at the hearing under Rule 76 of the Employment Tribunal Rules of Procedure 2013 which says this When a costs order or a preparation time order may or shall be made 76.—(1) 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…[3]It is significant in this case that the various complaints in the claimant’s claim were subject to a deposit order totally £300 made by Employment Judge Sharkett on 1 June 2022. That deposit had been paid. The Tribunal was satisfied that the grounds this panel found to dismiss the claimant’s complaints were substantially the same as the reasons given in the deposit order. The consequence of that under Rule 39(5)(a) is that “the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of Rule 76, unless the contrary is shown… If a deposit order is made the paying party is warned about this in the information leaflet provided with the order.[4]At the end of the final hearing Mr Searle, the respondent’s counsel made an application for costs limited to the amount of costs incurred by the respondent in respect of his attendance at this hearing.[5]Both parties indicated that they wished the issue of costs to be considered without a further hearing. The claimant was ordered to provide any representations about costs by 7 July 2023 and to provide information about his financial position which he wished the tribunal to take into account. The respondent was ordered to provide any reply to that by 23 July 2023.[6]Both parties made further written submissions in accordance with those case management orders, and the claimant provided financial information which has been considered by this tribunal along with further written submissions made by the claimant and received on 10 January 2024.[7]In its written submissions the respondent sought additional costs on the basis that the claimant had not immediately agreed to pay the costs sought by Mr Searle, although Mr Searle had not limited his application for costs by suggesting that a reduced amount would be sought only if the claimant agreed to a particular figure at the hearing.[8]The respondent provided a table showing the costs claimed which is somewhat difficult to follow. It appears to suggest that £10,773.00 is claimed in respect of case preparation and £16,905 in respect of Mr Searle’s costs, including VAT, but the total claimed is £26,678.20. It is impossible to reconcile those figures in the respondent’s table. There is either an error in the figures or in the calculations.[9]The total amount claimed seems to suggest that the respondent has sought costs to be determined by way of a detailed assessment under rule 78(1)(b) (because more than £20,000 is claimed), but if that is the case the respondent had wholly failed to explain the costs incurred and the information necessary for a detailed assessment. The only information provided to the tribunal in respect of case preparation is that the respondent had incurred “262.3 units” at the total cost of “£10,773”. In its submissions the respondent stated that the hourly rates claimed in respect of the in-house litigation team are charged at its internal recharge rates and that Grade A solicitors are charged at £72 per hour where appropriate, although the tribunal found this information difficult to reconcile with the unit and total cost information referred to above.[10]The employment tribunal considered that it was in accordance with the overriding objective for the issue of costs to be decided at this hearing rather than postpone the hearing to seek clarification from the respondent about the amount claimed. In the final paragraph of the respondent’s submissions, it says this “in such circumstances, the respondent maintains that it is reasonable the claimant to contribute towards the claimant’s costs in at least some of £10,800 or such other sum the Tribunal considers to be appropriate”. In the circumstances the tribunal considered that it was appropriate to consider this application as a costs application under rule 78(1), that is an order for a specified amount not exceeding £20,000. Submissions[11]In support of its application the respondent drew our attention to the judgment in Hemdan v Ishmail and other [2017] and in particular the following paragraph “10. A deposit order has two consequences. First, a sum of money must be paid by the paying party as a condition of pursuing or defending a claim. Secondly, if the money is paid and the claim pursued, it operates as a warning, rather like a sword of Damocles hanging over the paying party, that costs might be ordered against that paying party (with a presumption in particular circumstances that costs will be ordered) where the allegation is pursued and the party loses. There can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That, in our judgment, is legitimate, because claims or defences with little prospect cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resource, and unnecessary anxiety. They also occupy the limited time and resource of courts and tribunals that would otherwise be available to other litigants and do so for limited purpose or benefit.”[12]The respondent argued that the claimant had pursued his claim despite the consequences of doing so when the deposit order had been made clear and it was further submitted that the claimant had pursued his case in a manner which was reasonable, wanting to the claimant generating excessive amounts of sometimes unintelligible correspondence and applications in which he was unable or unwilling to identify the correct basis with claim. It is argued that this led the tribunal and the respondent to have to undertake additional work in order to clarify the matters raised. In that context the respondent argues that the grounds for costs and made out under both rules 76(1)(a) and (b) are made out.[13]In his submissions of 7 July, the claimant argued that he not acted unreasonably in pursuing his complaints. The claimant appears to rely on the fact that there has been no prior warning of a costs application until the tribunal had given its judgment. In his submissions he does not explain why he decided to pursue his complaints despite the deposit order and warning of Employment Judge Sharkett that his complaints had little reasonable prospect of success, but the claimant does say that in relation to the information he provided to the employment tribunal he had believed that he had acted reasonably, and he disputed that his correspondence had been conducted in an unreasonable manner.[14]The claimant goes on to refer to his means and submitted that a costs order would cause financial hardship. In the claimant’s additional submissions provided in the week before this in-chambers hearing, he has explained that he has obtained new employment, but he says that “the claimant’s current means from this employment sector is not yet fully commensurate” which the Tribunal understands to mean that his new salary is less than he was paid by the respondent. The claimant did not provide us with details of his new pay. Our approach to the law, discussion and our conclusions[15]Rule 76(1) usually imposes a three-stage test in considering costs: first, the tribunal must ask itself whether a party’s conduct falls within rule 76(1)(a) — in other words, is its costs jurisdiction engaged?; if so, secondly, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party; and the third stage is the determination of the amount of any award.[16]As noted above, under rule 39(5)(a) the claimant is presumed to have acted unreasonably in pursuing the specific allegation or argument for the purposes of a costs order in light of our findings at the final hearing. In other words, it is for him to prove the contrary or unreasonable conduct will be made out under rule 76(1)(a) and the tribunal must consider whether to make a costs order.[17]However, that presumption of unreasonableness does not mean that the tribunal must automatically make a costs order: under rule 76(1) the Tribunal must still ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party.[18]The claimant is a litigant in person. As Mr Searle reminded us, lay people are not immune from orders for costs: far from it, as the cases make clear. However, we did take the view that we cannot judge a litigant in person by the standards of a professional representative. Justice requires that tribunals do not apply professional standards to lay people and we recognise that lay people are likely to lack the objectivity and knowledge of law and practice brought to bear by a professional legal adviser.[19]In terms of whether the costs threshold has been engaged as noted above, Rule 39(5) makes a presumption of unreasonableness where complaints have been pursued despite a deposit order being made, but generally the burden lies on the party seeking costs to establish that the costs jurisdiction is engaged.[20]The respondent appears to argue that the claimant had acted unreasonably before the deposit order was made and a costs order should be made in respect of that period of time.[21]We considered that it was relevant to seek to look at this case in relation to two periods of time. After the deposit order there is a presumption, the claimant has acted unreasonably which it is for him to rebut. Before the deposit order it is for the respondent to show that the threshold has been met.[22]The respondent argued that the claimant had frequently submitted unintelligible correspondence and applications and that this was unreasonable conduct which predated the deposit order. The tribunal panel had some sympathy with that submission. The claimant has a somewhat florid way of expressing himself which is sometimes hard to follow, and the tribunal panel itself has had some difficulty following the claimant’s evidence and arguments at times. However, the tribunal panel did not find any suggestion that this was done mischievously, or even knowingly. On balance we are satisfied that the claimant, as a litigant in person, was doing his best and we did find the respondent had not shown that the threshold for costs had been met before the hearing on 1 June 2022 that date from which the presumption in Rule 39(5) applies.[23]In terms of the threshold for costs after the deposit order on 1 June 2022 we accept the respondent’s submissions and find, in accordance with Rule 39(5), that the threshold for costs had been met.[24]We therefore had to decide whether to exercise our discretion to award costs having regard to all the relevant factors, from 1 June 2022.[25]It is clear to us that the claimant failed to pay proper heed to the deposit order and the warning about his prospects of success from the employment judge. He has offered us no explanation for that. It appeared to us that he genuinely, although misguidedly, believed the council had a case to answer and that this is one of those cases whereas a litigant in person, the claimant’s lack of objectivity was telling but that did not excuse his conduct. The claimant should have made paid more attention to the judge’s warning.[26]We accept that because the claimant failed to take heed of the warnings about the likelihood of success the respondent was forced to incur unnecessary costs. We also accept that the claimant failed to explain his complaints and that his failure to explain the protected disclosure he relied upon in particular was unreasonable. In the circumstances we accepted that we should exercise our discretion and make an award of costs in the respondent’ favour. However, we decided to exercise that discretion in a limited way.[27]We also took into account the tribunal panel’s concerns, expressed at the hearing to the parties, to the approach which the respondent had taken to the preparation of the hearing bundle. We accept that it is unfortunate that there were no case management orders in place for the preparation of the hearing bundle although of course the parties could have sought orders if they were needed. If the respondent was unclear on the approach to adopt it could have referred to the Presidential Guidance on General Case Management which makes clear what is required and that it is usually appropriate for documents to be included in chronological order.[28]We do not suggest that the respondent had breached any tribunal order, but nevertheless the bundle prepared is very difficult to work with. The documents are divided into “claimant documents” and “respondent documents” and are not organised in date order. The index refers to correspondence by reference to pdf numbers rather than using the convention of explaining briefly what a document is, for example “email between the claimant and his line manager sent on [date] which enables both the claimant as a litigant in person and the tribunal to navigate the bundle easily. If this had been done, we think it is likely the claimant would have found it easier to prepare for and present his case at the hearing. It was also clear that the bundle had only been sent to the claimant at a relatively late stage and this too is likely to have increased the pressure on the claimant.[29]This was a case where both parties had conducted the litigation and presented evidence in a somewhat unhelpful way and the claimant raised concerns with us about the late delivery of documents by the respondent. In other words, there is some criticism to be made of both parties in relation to the conduct of this litigation.[30]In his submissions on costs Mr Searle had acknowledged these issues and suggested that we should consider making an award in relation to his costs of attending the final hearing. That was a sensible approach and we have decided that, notwithstanding the claimant’s unreasonable conduct, we should not exercise our discretion to award any preparation costs for the period before the final hearing.[31]We decided that although the costs threshold had been met after the deposit order was made, we should only exercise our discretion to award costs in relation to the final hearing itself in accordance with Mr Searle’s application at the final hearing.[32]We also make this point. Even if we had decided to exercise our discretion to award costs for hearing preparation, the respondent had failed to provide us with adequate information. Awards in relation to costs are compensatory and therefore it is important to examine what loss has been caused to the receiving party. Costs should be limited to those ‘reasonably and necessarily incurred’. An assessment under Rule 78(1) can take a broad-brush approach of course, but nevertheless we considered the lack of any information at all about the “case preparation costs”, other than an assertion of a particular sum and the total units which in any event we found difficult to follow, made it impossible for us to assess what costs were reasonably and necessarily incurred by the respondent’s legal team between the deposit hearing and the final hearing. We were concerned in particular that we were unable to determine if the costs figure included time before the deposit hearing and we thought it was likely that it did.[33]Turning then to the amount of costs we should award the respondent in relation to the final hearing itself, we accepted that the claimant has limited means and that was something we should take into account, although we did not have to.[34]In terms of the amount of the costs claimed, we also took some account of the fact that despite the respondent’s arguments that this was a claim which was, in essence, obviously and straightforwardly doomed, the respondent had nevertheless chosen to instruct a very experienced specialist employment barrister. We could not help but reach the conclusion that it could not be said to have been reasonably necessary to instruct so experienced, and therefore expensive, a barrister to conduct this hearing on its behalf. In reaching that finding we emphasis we make no criticism whatsoever of Mr Searle, whose conduct of the case was helpful and courteous throughout.[35]However, the most significant factor for us was the claimant’s means. We found that it was reasonable to reduce the amount of costs payable to take account of the claimant’s ability to pay costs. We did not consider it appropriate for us to make an order for costs which we thought the claimant would not be able to pay.[36]Turning to the information about the claimant’s means, he had provided us with somewhat brief information, but there was no suggestion on the part of the respondent that we should not accept that information. The claimant gives details about his own and his partners’ income and set out a number of outgoings. The tribunal panel noted that the amounts set out seemed reasonable and very little in the way of discretionary spending had been referred to.[37]We did not consider it appropriate to take into account the claimant’s partner’s means. The claimant’s partner had not been involved in the proceedings and we did not consider it to be in accordance with principles of fairness to require them, in effect, to contribute to the amount to be paid to the respondent.[38]We considered the amount we should order in relation to costs by reference to the claimant’s limited disposal income and £600 in savings. In considering that we accepted and worked to the respondent’s calculations included with its submissions, using the figures from its analysis in the “excluding partner’s income” column. That calculates the claimant as having available [to pay costs] around £328 per month, in addition to the £600 in savings.[39]On balance and taking all of the above into account we considered the total sum of £2,700 to be a fair and reasonable sum under Rule 78(1) taking into account our assessment of income and savings above. We have provided for an extended timescale for the awarded sum to be paid which enabled us to be satisfied this was as an amount which the claimant should be able to pay without further enforcement. The amount now payable is reduced by the amount of the deposit which was paid by the claimant in accordance with the deposit order.[1]Lengthy reasons have previously been given for making the costs order.[2]The claimant subsequently applied the order to be varied or set aside in what he referred to as a reconsideration application. His application was somewhat difficult to follow but he appeared to seek a variation on three grounds:a. For the date of compliance to the extended to 16th September 2024b. To allow the Greater Manchester Mental Health (GMMHS) to be offered an invitation to participate or make representations about the costs awarded.c. To allow the tribunal to contact Social Work England in relation to its Fitness to Practice hearing. Case No. 2409171/2021[3]In relation to point 1, the respondent was invited to consent to the variation but it declined to do so nor as the tribunal received any update from either party about this case.[4]The decision on costs had been made by the full tribunal and so the application to vary or set aside needed to be considered by the full panel.[5]After considering all of the information received, the panel concluded that the claimant had not explained the basis for grounds (b) and (c) above. It was not clear what relevance the involvement of either third party would be relevant to the determination of costs. The tribunal concluded there was no basis for taking the steps suggested by the claimant. It did however accept the documents submitted by the claimant in relation to the fitness to practice hearing confirmed that he had been taking steps to try and re-join the social work profession but is unable to do so until his fitness to practice has been reinstated and we accepted that this would inevitably impact on his financial circumstances.[6]Whilst the claimant had still provided the tribunal with somewhat limited financial information, the tribunal had always taken the position that whilst it was right for the claimant to pay the respondent the amount ordered in costs, it would not be proportionate for the tribunal to make an order for costs which we thought the claimant would not be able to pay.[7]The claimant had sought a somewhat modest extension to the time to pay the costs order. The panel concluded that granting the variation would be propionate. If repayment is ordered over a manageable period, we think it is more likely that the costs will paid without any enforcement action being necessary and that it is in the interests of all concerned avoiding further costs, delay and involvement of other courts. We were somewhat surprised that the respondent could not simply agree the extension for this reason.[8]We concluded that it was in accordance with the overriding objective to grant the variation sought.