Mr E Nii Larbi v Thurrock Council and L Preston: 3201623/2019 and 3203127/2019
EMPLOYMENT TRIBUNALS
Case No 3201623/2019, 3203127/2019
Between
Mr E Nii LarbiClaimantThurrock Council and L PrestonRespondent
Before
Regional Employment Judge TaylorIn person for claimantDate 23 November 2020
JUDGMENT
The Judgment of the Tribunal is that the claimant was not a disabled person as defined in section 6 and Schedule 1 Equality Act 2010 at the relevant times.
REASONS
[1]The claimant is employed by Thurrock Council which is a Unitary Local Authority. He has worked as a Civil Enforcement Officer since his employment started on 24 May 2016. He presented a claim on 29 June 2019. In that claim he said the respondent had discriminated against him on the grounds of race, sex and disability.[2]This is a preliminary hearing to decide whether the claimant is a disabled person within the meaning of the Equality Act 2010. (The ‘disability question’.)
The background
[3]In his claim form the claimant explained the background to his claim. It begins with an assault on him that occurred on 12 September 2018, while the claimant was carrying out his work duties. The claimant reported the incident to the police and wrote an incident report which he gave to his employer. The claimant states that following the assault he was unable to work ‘due to the nature of the assault’.[4]He visited the minor injuries unit and his GP and from that date he was absent from work on sick leave until he returned to work on the 30 October 2018. On his return to work he was in pain and taking pain killers. He was weak, drowsy and experiencing sharp pains. He felt unsafe walking or driving in the carrying out of his duties and asked to work in an office instead.[5]The claimant was told that no suitable office work was available. He was required, after a short time, to return to his usual patrolling duties.[6]Although the claimant claims he was discriminated against because of his disability he had not expressly identified what that disability was. The claimant was required to do so for the purpose of these proceedings. Eventually, after two preliminary hearings (1 November 2019 and 13 January 2020), the claimant described his impairment as: ‘a post-trauma physical impairment. His case is that the impairment causes pain when walking (from his foot and knee) and chest pain and from time to time when leaning over. The pain causes the claimant’s stress and leads to his body becoming itchy causing the claimant discomfort.’[7]The actual trauma being the assault on him by a member of the public on 12 September 2018.[8]The respondent disputes that the claimant is disabled. It also denies that it has discriminated against the claimant in any way. The respondent had not seen any medical evidence or other evidence supporting the claimant’s claim to be a person who is disabled.[9]By the date of the preliminary hearing held on 13 January 2020, the claimant had presented a second claim form to the Tribunal on 25 December 2019. That claim was given the case number 3203127/19. At this hearing the claimant explained that the claims and allegations made in the second case concern allegations of a continuation of the respondent’s alleged discriminatory treatment, but arise out of same facts and issues raised in the first claim. Therefore, the Tribunal ordered that the two cases should be joined together and the final hearing of the claims will be heard together.[10]For the claimant’s claim of disability discrimination to be permitted to proceed to a final hearing, the Tribunal must decide the preliminary matter of whether he has or had a disability and, if he did, whether the claimant had a disability at all of the relevant times.
The issues
[11]The question for the Tribunal to decide at this preliminary hearing is: Was the claimant a disabled person as defined in section 6 and Schedule 1 Equality Act 2010 at all of the relevant times? The relevant time[12]Whether there is an impairment which has a substantial adverse effect on normal day-to-day activities must be assessed at the date of the alleged discriminatory act. The same period is to be used when assessing whether the impairment has a long term effect.[13]The claimant claims that the discriminatory act began on 30 October 2018 when he informed the respondent that he was not able to carry out his work duties on foot or by vehicle, because of the ‘post-trauma pain’ and also drowsiness he experienced due to the strong prescribed medication he was taking for the pain caused by the injury. The claimant first informed the respondent that his skin was itchy on 24 October 2019, which was well after the assault in September 2018 he relies on as being the act that caused him to experience trauma. The claimant claims there was a continuing act of disability discrimination from that date because the respondent has never made reasonable adjustments for him on his return to work on 30 October 2018. The claimant also relies on the same assault giving rise to the post-trauma physical impairment in support of his second claim, case number 3203127/19.[14]Based on the claimant’s allegations and for the purpose of this preliminary hearing the relevant time is assessed from 30 October 2019 to 29 June 2019 in respect of the first claim and May 2019 (the date of second assault) to December 2019 (when the claim from was presented) for the purposes of the second claim. It follows that the decision on the disability question applies to both claims.
The Hearing
[15]The claimant attended the preliminary hearing in person and represented himself. The respondent was represented by Mr Cheves, of Counsel.[16]The claimant confirmed that he relies on ‘a post-trauma physical impairment’ as being a disability as defined by the Act. His case is that the impairment causes pain when walking (from his foot and knee) and chest pain and from time to time when leaning over. The pain causes the claimant stress and leads to his body becoming itchy causing the claimant discomfort.[17]The claimant had prepared a witness statement on the question of disability, addressing what he relied on as his impairments (A155-159). When asked the claimant said that he had not read his witness statement recently. To refresh his memory the claimant read his statement before being cross-examined by Mr Cheves.[18]Mr Phil Carver, Strategic Lead Environmental Enforcement Community Protection, attended the hearing to give evidence on behalf of the respondent. Mr Carver produced a witness statement comprising of six pages (which was not included in the bundle). He had line managed the claimant as an interim measure during the period January to July 2018 and after that he continued to manage the claimant (and his peers), mainly in relation to sick leave and other matters. Mr Carver was cross-examined by the claimant.[19]The respondent had prepared a file of documents comprising of 182 pages. Reference is made to these documents in the reasons set out below. The claimant separately wrote down for the Tribunal the numbers of all the documents in the file he considered were relevant to the disability question. These documents were taken into consideration when arriving at this decision.
The applicable law
[20]The definition of disability has a number of different elements for a Tribunal to consider when arriving at its decision on whether a person has a disability.[21]The starting point is Section 6 of the Equality Act 2010, which says that a person has a disability if:(a) he has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-today activities. The meaning of ‘substantial’[22]There is a general interpretation section in the Equality Act and at section 212(1) it says that ‘substantial’ means ‘more than minor or trivial’. The meaning of ‘long-term’[23]Long-term impairment also has a particular meaning. A long-term impairment is one that has lasted 12 months or is likely to last 12 months or is likely to recur.[24]Whether an impairment is long-term must be considered as at the date of the alleged discrimination. (Long-term impairment is not to be considered as at the date of the Tribunal hearing (McDougall v Richmond Adult Community College [2008] ICR 431 CA). Guidance on matters be taken into account in determining questions relating to disability[25]Guidance has been issued by the government under section 6(5) of the Equality Act concerning the definition of disability in the Act. Any tribunal which is determining for any purpose of the Equality Act whether a person is a disabled person has to take into account any aspect of this Guidance which appears to it to be relevant. The meaning of substantial adverse effect[26]In deciding whether a claimant is disabled within the meaning of the Act, it is necessary to consider what ‘substantial adverse effect’ means.[27]This is considered in Part B of the Guidance. Paragraph B2 says that the time taken by a person with an impairment to carry out normal day-to-day activity should be considered when assessing whether the effect of the impairment is substantial, it should be compared with the time it might take a person who did not have the impairment to complete the activity.[28]Paragraph B3 states that another factor to be considered when assessing whether the fact of an impairment is substantial is the way in which the person with that impairment carries out normal day-to-day activities.[29]Paragraph B4 gives guidance that an impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect.[30]Paragraph B6 says that a person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments taken together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.[31]The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long-term.[32]Paragraph B7 says that account should be taken of how far a person can reasonably be expected to modify his behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-today activities.[33]The Tribunal must consider the question of impairment as if the person is not taking medication or in the absence of measures controlling it. The meaning of normal day-to-day activities[34]Paragraph D2 reminds us that the Equality Act does not define what is to be regarded as ‘normal day-to-day activity’. Paragraph D3 says that in general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or shift pattern.
Findings of fact
[35]After hearing the claimant’s evidence, the evidence from Mr Carver, and having read the documents referred to the Tribunal in the evidence, the Tribunal makes the following findings of fact on the issue of whether the claimant is a person with a disability. Chest pain post trauma[36]The claimant is employed by Thurrock Council as a Civil Enforcement Officer. His employment started on 24 May 2016. The claimant’s duties include day-to-day patrolling and engaging with members of the public dealing with parking contraventions. He carried equipment such as hand-held terminals, body cams and radio. He walked a significant distance per day and also stood for long periods. He drove a vehicle occasionally to carry out his duties (A40).[37]The claimant was carrying out his duties on the 12 September 2018 when he was attacked by an unknown member of the public. The attacker gave the claimant a single blow to the right side of his chest with a solid object, a hand held cordless screwdriver. (A1l).[38]The incident on 12 September 2018 happened at about 10:30am. The claimant was examined at the local minor injuries unit that afternoon at about 1.25pm. On examination at the site of the injury it is recorded that the assault left nil bruising, nil inflammation, nil deformity and nil tenderness and as having full sensation. (A1l).[39]The claimant was advised to visit his GP if he had any concerns later on (A1l). The claimant’s medical records show that he telephoned his GP’s surgery later that same evening at 19.13 to report he felt a sharp chest pain when breathing in. He was booked for an appointment at the GP surgery and was seen and examined there the following day.[40]On examination on 13 September 2018 at the surgery the claimant was found to have tenderness over the 5th to 7th rib over the right side of his chest and the front of his chest. He was advised to take paracetamol or other pain killers if needed (A1l). He was not prescribed any pain killers.[41]The claimant contacted his GP surgery over the next few days by telephone and in person, reporting on-going chest pain when breathing in. It is recorded that an electrocardiogram (ECG) medical test (for heart) was carried out on 15 September, the results of which were normal (A1m).[42]The claimant was examined again on 19 September 2018 with the claimant reporting that he was still in pain and not responding to his own pain killers. The claimant was worried that he might have a fracture. A chest x-ray was recommended and the claimant was told to continue taking his own pain killers (A1m).[43]It was the claimant who said he could not work and who requested a ‘sick note’ (Statement of Fitness for Work) at the examination on 19 September 2018. He was provided with a form MED 3 (sick certificate) by his GP indicating he was not fit for work with a diagnosis of ‘chest pain post-trauma’ (A21) and not fit to work from 12 to 26 September 2018. Considering the certificate and the corresponding medical records there is no record of any physical symptoms that the claimant said he had being verified by the GP’s own assessment (A1m). A x-ray was booked.[44]On 25 September 2018 the claimant telephoned the surgery to request an extension to his Fitness for Work certificate, giving as his reason that he was still experiencing chest pain. The Statement of Fitness for Work certificate was issued until 10 October 2018 without a further physical examination of the claimant by his GP (A1m).[45]The claimant repeated his request for an extension of the certificate on 10 October and it was extended to 16 October 2018, again without further physical examination (A1m).[46]The claimant was examined on 16 October and some tenderness over the chest wall was recorded. His Fitness for Work certificate was extended to 29 October, with the diagnosis ‘chest pain post trauma’ (A1m). (It was noted that he had knee sprain although there was no swelling.)[47]The respondent arranged for the claimant to be examined by an Occupational Health practitioner for the purpose of providing an Occupational Health report on his return to work. The claimant was examined on 19 October 2018 (A 31-36). On that occasion the claimant recorded improvement to his chest pain but complained that he now had knee pain. He said his physical symptoms were improving although on this occasion he expressed concerns about his psychological health. The Occupational Health practitioner recommended a phased return to work, avoiding prolonged walking during the first week, with a return to full duties at the start of the second week. The Occupational Health practitioner concluded it was not likely that claimant’s condition would be covered by the Equality Act and concluded that he was not a suitable candidate for redeployment on medical grounds.[48]The claimant returned to his usual duties on 30 October 2018, although he was allocated to office work for 2 days, which he carried out. The claimant would have liked office based work for longer but he was informed that none was available.[49]The claimant did not return to his GP concerning chest pain and did not attend any physiotherapy.[50]Unfortunately, the claimant was assaulted for a second time on 8 May 2019. The assault took place while he was carrying out his employment duties. The next medical record of chest pain concerns that second incident, about seven months after the first. In a telephone call to his GP the claimant reports chest pain. He was examined on the same day. The entry records that on examination no chest wall tenderness was found and his chest was clear, suggesting no evidence of breathing difficulties and there had been no recent injury or trauma to the chest. The claimant complained to his GP of ongoing pain for the next few days, that period ending with Fitness to work certificate being provided stating that he was not fit for work for the period 22 May to 28 May 2019 (A1p).[51]It is not until 7 November 2019 that the claimant complains of chest pain again (A1q). There is no record of the claimant reporting that the pain had been continuous for over a year at this appointment. No new assault had occurred and it is not clear what the source of this sudden onset of chest pain was. The Tribunal notes that his GP offered no treatment to him for it.[52]The claimant gave evidence that there is a history to his chest pain and that first experienced chest pain after a car accident in 2015. He still suffers pain from the 2018 injury and difficulty breathing at the same time that the pain starts. He experiences a sharp pain when leaning forward, a tightness in his chest, back pain and a problem with walking. He says the pain is intermittent but has continued since the date of the injury on 12 September 2018.[53]The claimant’s evidence of continuous chest pain is not supported by any of the medical evidence presented by him. Body Itching[54]The claimant gave evidence that he also suffered body itching which happens to him when he is depressed, stressed or in pain. He explained that he sometimes finds the condition unbearable. Asked when this first occurred the claimant gave evidence that he was depressed following a tragic family death that occurred in 2011 and he has had body itching intermittently since that time. He received counselling and has seen his GP but has had no diagnosis from a medical practitioner about what the reason or cause of this body itching condition is.[55]The claimant gave evidence that although the itching did not begin with the assault on September 2018, the trauma triggered the condition.[56]The claimant’s evidence on this matter was not accepted by the Tribunal. There is no evidence at all of the itching returning and affecting him when he was assaulted in September 2018 or later as a consequence of the assault. Knee pain and foot pain[57]The claimant gave evidence that he developed difficulty in walking in early November 2018 and about right knee sprain or strain that occurred in February 2019. He also reported that it was not able to drive due to ongoing issues relating to his leg in February 2019.[58]The onset of knee pain began one month after the chest trauma. It is not apparent from the claimant’s MED 3 certificates or his medical notes that knee or leg pain had any causal link to the assault affecting his chest. They all record that the claimant had chest pain post trauma. Depression[59]The claimant gave evidence that he has depression. However, this was not the impairment he relied on in this case and is not a relevant consideration at this hearing. Day-to-day activities[60]The claimant returned to work on 30 October 2018 approximately six weeks after the assault that occurred on 12 September 2018. His normal duties included day-to-day patrolling and engaging with members of the public dealing with parking contraventions. He carried equipment such as hand-held terminals, body cams and radio. He walked a significant distance each day, about 10 kilometres and also stood for long periods. He drove a vehicle occasionally to carry out his duties.[61]When the claimant returned to work on 30 October 2018 and also did a variety of office-based duties for a few days. Mr Carver also gave evidence, which the Tribunal accepted that the claimant’s ability to discharge his duties as a Civil Enforcement Officer was unaffected by the injury sustained in the assault. Mr Carver recalled that the claimant had some difficulty when walking for too long but generally he had no difficulty completing the physical aspects of the job. The claimant was advised by Mr Carver that if he could not do the work, then he should take sick leave. The claimant did not need to take time off on sick leave at that time and continued working, fulfilling all of his duties, right up until November 2019.[62]The claimant did not disagree that he could carry out all of his normal duties when he returned to work. However, he requested office duties because he was struggling to walk and would sometimes limp. He linked this to the chest injury post-trauma, but there is nothing to support his claim that his leg and knee pain had anything to do with the chest pain post trauma. He was diagnosed with a knee sprain. The claimant claimed that because of the itching he cannot cook or prepare or eat hot meals or take a warm bath. He gave evidence that the pain in his knees, chest and heel are intermittent but sometimes prevent him from socialising. This account of the effect of his post-trauma impairment having an effect on his ability to carry out day-to-day activities was not supported by any of the contemporaneous medical or other records provided by the claimant and was not accepted by the Tribunal. The submissions[63]The respondent submitted that the claimant put his disability as being post trauma. With regard to the chest pain there was an altercation between him and a member of the public in September 2018. The medical records show that immediately after the altercation he was seen, but there was no more reference to the chest pain between 19 October and 8 May 2019 when unfortunately, he was involved in a second altercation and there was a further assault. The claimant was referred to Occupational Health about analgesia and strain to his groin. By the time the claimant was seen by Occupational Health he had recovered from this. 16 May was a second occasion when he reported chest pain. Between 16 May and 7 December 2018 there were no further references to problems with his chest. The claimant had by this time returned back to work on full duties. These two periods of chest pain, were self-limiting in nature. If the claimant has chest problems these were not part of his claim for post trauma disability.[64]The knee problem began a month after the assault, in November 2018 and there is no further reference to this until February 2019. However, the claimant was signed as fit to return to work in October 2018. The claimant was continuously at work until May 2019 when he had a short period of absence following the second assault. In February 2019 the claimant alleges that he cannot drive and is struggling to walk and is referred to the Occupational Health physician. The claimant declined to attend or progress the Occupational Health referral and it therefore did not proceed. He was absent from work following the May 2019 incident but had returned by 26 June 2019, when he attended a back to work meeting. There is a hiatus in his medical records then. In November 2019 an x-ray shows his knee to be normal. The claimant says the knee pain occurred from time to time. The trauma occurred in September 2018 and there were no further problems with his knee until the end of 2019. These complaints only arise when the claim to the employment tribunal is made.[65]As for the foot pain, this was first raised in 23 October 2019 over a year after the assault in September 2018, and five months after the second incident. There is nothing to suggest that the foot pain is as a result of the trauma. Is unclear what the extent of the problem is but during 2018 and 2019 the claimant was undertaking full duties of a Civil Enforcement Officer which involved walking up to 10 to 15 miles a day.[66]The first reference to the claimant suffering itching is in October 2019 over a year after the September 2018 incident. He was able to perform his duties before and after the incident, undertaking his normal tasks. There is no evidence of traumatic physical impairment being linked to the itchiness.[67]None of the four physical elements are of sufficient severity or longevity to fall within the definition of disability.[68]When considering the question of disability the Tribunal must decide whether the claimant has a disability at the relevant time for the first claim these are 21 November 2018 onwards, January 2019 and 15 February 2019. For the second claim, doing the best the respondent can, the alleged acts of discrimination are said to have taken place in May, August, October, and November 2019.[69]The claimant submitted that he has chest pain which first started in 2015 when he had a car accident. The chest pain was ongoing. It comes and it goes. The claimant had chest pain after the assault incident and the severity reduced up to December 2018. The issue reappeared in January 2019 and he took pain relief. It occurred again in May 2019 after the second assault. Therefore, there are no medical records because he took painkillers when he needed them. He continues to have chest pain up to the present day.[70]Knee pain began with a motor accident that occurred in 2015. He had knee pain in September 2018 which is ongoing. He had an x-ray which showed that his knee had normal wear and tear. The knee pain is continuing. The second assault did not have an effect on this.[71]The foot pain started shortly after the knee pain in 2015. It can be serious enough for him to begin limping.[72]The itching is a pre-existing condition. His body reacts when he is under stress and the trauma of the incident made it worse. The itching has been at the medical records from 2017 has been related to stress. There is also an entry for depression in 2017.[73]It is right to say that he did not co-operate with Occupational Health in 2019, but this was because his manager did not follow the correct process. The Tribunal’s Conclusions[74]The Tribunal considered whether the claimant had, as described by him, ‘a posttrauma physical impairment at the date of the alleged discrimination on his return to work in October 2018. His case is that the impairment causes pain when walking (from his foot and knee) and chest pain and from time to time when leaning over. The pain causes the claimant’s stress and leads to his body becoming itchy causing the claimant discomfort.’[75]The claimant was assaulted by a blow to his chest on 18 September 2018. The Tribunal accepted that the medical evidence supports the claimant’s contention that after the assault in September 2018 he experienced tenderness over the 5th to 7th rib, tenderness over his sternum and that the chest pain he experienced at that time was as a direct consequence of the assault. The Tribunal therefore finds that the claimant had chest pain post-trauma in September 2018. He was assaulted for a second time in May 2019 and experienced chest pain occurred as a result of that incident as well. The claimant had time off from work, certified by his GP for several weeks after each episode. The Tribunal accepts that given he was assessed as requiring time off of work to recover that the ‘chest pain post trauma’ was on each occasion substantial, that is ‘more than minor or trivial’.[76]The claimant also relies on the pain in his foot and knee and his body becoming itchy causing him discomfort as being related to the chest injuries and therefore being ‘post trauma’. There was no evidence to support his contention that this additional collection of conditions was in any way related to the assaults on his chest. They were not reported to the minor injuries unit when he attended in September and there was no evidence to support his contention that they were in any way related to the assault. The knee pain is recorded as having begun a month after the first assault, in November 2018 and there is no further reference to knee pain until February 2019. The knee and foot pain are recorded in November 2019 as a likely consequence of the substantial amount of walking the claimant does as part of his duties. The claimant walked about 10 kilometres a day when at work and it is unsurprising if he occasionally has a strain or a sprain as recorded in his medical notes. The claimant provided no convincing evidence that the effect of the assault to his chest either in September 2018 or in May 2019 were in any way physically related to his knee and foot pain.[77]It also recorded that when under strain the claimant reports his body became itchy, causing him discomfort. However, there is no medical evidence that the itching was caused or brought on by the assault on him in September 2018. It was not reported contemporaneously. There is nothing that might support the claimant’s contention.[78]By failing to show that the knee or foot pain and itching are related to the trauma following the assault, the Tribunal finds that the claimant has failed to establish that he has the post-trauma physical impairment as he contends he has for the purpose of these proceedings.[79]The Tribunal then focused on whether even disregarding the other impairments he contended the ‘chest pain post trauma’ physical impairment itself satisfied the definition of disability. The burden of proof is on the claimant to show that he satisfies this definition. A person has a disability if he has ‘a physical or mental impairment’ which has a ‘substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’.[80]The Tribunal then considered whether the chest pain was a long-term impairment, that is one that has lasted 12 months or is likely to last 12 months or is likely to recur.[81]The contemporaneous medical reports shown to the Tribunal provided evidence that the trauma following these assaults lasted a number of weeks before being resolved and were short-term. On examination on 12 September 2018 at the minor injuries unit the claimant was found to have muscular pain and was told to take over-the-counter pain killers, Ibuprofen or Nurofen, for any physical symptoms. Although he reported continuing chest pain, there was no medical evidence of ongoing chest pain, following the assault in September 2018, after 10 October 2018. This is consistent with the medical examination recorded on 12 September 2018. The claimant gave evidence that the second episode of chest pain in May 2019 was related to the September incident, but that suggestion was not supported by the contemporaneous medical evidence or other evidence either. There is no record of chest pain after 20 May 2019. The Tribunal finds no evidence that a single blow to his chest that took place in May 2019 was in any way related to a single blow that happened in September 2019. The Tribunal finds therefore that the claimant recovered from the physical effects of the assaults a few weeks after each occasion. The pain having been resolved without further medical care required or needed within weeks the Tribunal finds that the ‘chest pain post trauma’ was not long term.[82]The Tribunal therefore finds that the chest pain post-trauma that occurred in September 2018 and May 2019 was not long-term and the impairment did not satisfy the statutory definition of a disability.[83]Having arrived at that conclusion, and although not strictly necessary to do so, the Tribunal considered the effect of the ‘chest pain post trauma’ on the claimant’s ability to carry out normal day-to-day activities. It is permissible to consider what a claimant did at work in assessing this.[84]The undisputed evidence before the Tribunal was that the claimant continued to fulfil his duties from October 2018 until his absent on sick leave from November 2019, with only limited periods of sick absence following the assaults. Many of the duties undertaken by the claimant during the course of his work are normal day to day activities, such as walking, driving, reading, writing, carrying items. The claimant carried out these activities fully, and has not satisfied the Tribunal that his ability to do so was substantially adversely affected once he returned to work after the chest pain post trauma.[85]The Tribunal concludes having considered all of the evidence that claimant did not have a disability as defined in section 6 of the Equality Act 2010 at the relevant time.[86]This decision does not affect the claimant’s remaining claims of sex and race discrimination. These claims will proceed to a hearing.
The evidence
[87]Mr Carver said that he thought he had a missed call from Mrs Hubbard also, but he said he could not be sure of this because he only had a few minutes to deal with this and other matters during his coffee break. As Mrs Hubbard had organised the lift, it is understandable that Mr Carver responded to her. Furthermore, given the grandiose (and nonsensical) claim that their lives were in danger by standing outside the magistrates court in the vicinity of the police station, it was a wise decision by Mr Carver to avoid speaking with the claimant in case tempers flared. Notwithstanding this claim is astonishing in its triviality, (you spoke to my friend instead of me) there is no merit to this allegation. There is no detriment in speaking to the person who organised the transport about arranging additional collection.[88]The allegation at 3.8 is ludicrous. The claimant complains that he was not invited to a meeting where his colleagues were given a rollicking by Mr Carver for ignoring his very clear instructions about the non-availability of return transport. Mr Carver’s annoyance was understandable, and this frustration was directed at Mrs Hubbard and the drivers, Mr Clayton and Mr Orton. He gave an informal oral warning to the individuals that he regarded as the culprits. The claimant was not told off for his behaviour because he was not an active participant in this display of bad behaviour. The claimant was not subject to any less favourable treatment in this regard. Issue 7 and 8 (the position of acting Civil Enforcement Supervisor).[89]The claimant complained about Ms Buckley 7 months before he applied for the role of acting Civil Enforcement Supervisor. This was accepted by the respondent as capable of amounting to protected act, pursuant to 27(2)(d) EqA, although the respondent dispute causation, i.e. that the claimant’s complaint about Ms Buckley resulted in him not being offered the temporary position.[90]Mr Carver sent the claimant, a copy of the advert for the acting Civil Enforcement Supervisor, which demonstrates that, during July 2018 at least, Mr Carver welcomed the claimant applying for this role. We have assessed the selection process and the marking sheets for this temporary role and conclude that Mr Ozoekwo was appointed because he performed significantly better than the other 2 candidates (which included claimant) on the basis of his high mark for the EoI application form.[91]Mr Ozoekwo’s ethnic origin is black African, which is, we presume, why the claimant did not claim direct race and sex discrimination. Ms Buckley was not involved in the acting supervisor’s selection and Mr Carver said that he did not speak to her about this process. There is no evidence to suggest otherwise. Mr Carver’s evidence in respect of selection was clear, rational and supported by interview notes and scoring sheets. There is no basis to conclude that the claimant did not get this job because of his complaint against Ms Buckley. Issue 10 (unauthorised deduction of wages)[92]The claimant claimed over time in respect of his spurious attendance at court on 1 March 2019. Overtime was available for staff if this was authorised by a senior manager in advance. The claimant sought no authorisation for overtime prior to his attendance at Basildon Magistrates Court on 1 March 2019 and he was not entitled to overtime on the basis of his misrepresentation to Mr Carver. The claimant’s attendance at court was to familiarise himself with the building’s layout and this activity might have formed part of his normal course of employment had he not misled Mr Carver about the purpose of his visit. In any event, it is difficult to see how the claimant could have possibly incurred 4 hours of overtime because a court visit would normally be concluded well within 1 or 2 hours. This claim is rejected. Issues14.1 and14.2 (the team meeting of 22 August 2019)[93]Issues14.1 and14.2 are 2 aspects of the same allegation. We went through the respondent’s signed statements for its investigation in response to the claimant’s allegations surrounding this team meeting. Of the 8 or 9 members of the enforcement team interviewed only Mrs Hubbard supported the claimant’s allegation. The statements record that Mr Ozoekwo reported that the claimant queried with him at the time whether Ms Preston had raised her voice; although Mr Ozoekwo said that he did not regard Ms Preston as raising her voice.[94]Mr Patrick Ojewole said Ms Preston said to the claimant: why do you have a problem with everything? Although she was smiling and did not raise her voice. Mr Ojewole said that the claimant may have taken this the wrong way, so he regarded it as inappropriate. This may have occurred prior to Ms Preston going off to find out about the washing requirement for the stab vests and following the claimant’s earlier outburst about the respondent disregard to staff health and safety. The other witnesses did not hear anything untoward. Most reported that Ms Preston being helpful and answering queries.[95]There is not much difference between Mr Ojewole reported comment and the first part of the claimant’s alleged comment. Although we have not heard from Mr Ojewole, we prefer to believe his written account because this reflects the likelihood of a more innocuous comment and if the claimant had said something aggressive or demeaning, then this would have been picked up by others around the table. Ms Preston did not believe that she said anything offensive to the claimant and the meeting stayed positive throughout. We accept that the comment reported by Mr Ojewole was a reasonably mild correction of the claimant’s petulant behaviour at this meeting. We do not believe Ms Preston said “nothing is positive” to the claimant. The claimant was looking for confrontation at this meeting and he tried to involve others, like Mr Ozoekwo. Ms Preston was keen to navigate the meeting away from confrontation and, in this, she succeeded.[96]We do not regard any comments being made by Ms Preston as untoward. We reject the claimant’s allegation that he was harassed or humiliated. The claimant was looking for an argument at that meeting and he did not get one. His conduct was unreasonable. Ms Preston did not create or contribute to a harassing environment. The claimant’s claims of direct sex and race discrimination have no foundation and his claim of harassment is rejected also. There is no possible foundation to the victimisation claim. This rests on the premise that because the claimant: complained around 1½ years before about a former manager who had left the workplace by that time; and/or, that because the claimant had issued proceedings largely against Mr Carver in respect of matters that occurred before she started work with the respondent or which she was not involved in that Ms Preston treated him badly at this meeting. There is not a single strand of evidence that could support such a contention, which was indicative of the half-hearted way that the victimisation complaints were pursued at the hearing by the claimant. Issue 14.3 (The sickness warning letters)[97]Ms Daly reported a high degree of sickness absence in her statement, which by June and July 2019 was as follows: - 24 June 2017 to 28 August 2017 - 14 December 2017 to 15 December 2017 - 12 September 2018 to 29 October 2018 - 8 May 2019 to 28 May 2019. The claimant did not dispute the accuracy of this evidence.[98]The claimant had triggered stage 2 of the sickness absence process. The claimant’s comparators of Mr Sharif, Mr Ozoekwo and Ms Abbott had not triggered the stage 2 process because their absence was not as frequent, long-lasting and persistent as that of the claimant.[99]The claimant contended that he received 2 warning letters. This is, again, an example of the claimant’s misrepresentation of the situation. The claimant had requested trade union representation during the meeting of 27 June 2019, which caused the meeting to be adjourned. So, the 2 letters relate to a single application of the respondent’s sickness absence policy at the stage 2 level. They are not 2 separate warning letters as asserted by the claimant in this evidence.[100]The respondent denies that the stage to outcome letter was a “warning” letter. The letters were not disciplinary and the respondent’s contended the outcome letters merely advised the claimant of a possible consequence of his continued sickness absence. We accept that the stage 2 outcome letter is a “warning” letter; however, as it is not disciplinary in nature it does not represent any less favourable treatment. The letters were entirely consistent with the Managing Sickness Absence Policy and merely reminded the claimant where he was in respect of that process and advised him (for his benefit) of what might happen should his attendance not improve.[101]It is impossible to see how, in this instance, the response to the claimant reaching a trigger point in the sickness procedure together with the appropriate documentation and confirmation could possibly amount to less favourable treatment on the grounds of the claimant’s race and sex and harassment and victimisation. Issue 14.4 (the investigation of the claimant’s September 2019 grievance)[102]The claimant’s grievance against Ms Preston was sent to the respondent on 9 September 2019 and concluded a little over 3 months later on 12 December 2019, just before the claimant issued his second claim. The outcome letter was not sent to the claimant because of an oversight and we accepted Ms Daly’s evidence in this regard. Ms Daly made a mistake, and she was frank and forthcoming about this. The claimant was sent the outcome of this grievance in June 2020, which was around 6 months after the grievance was concluded and approximately 9 months from when the grievance had been raised.[103]Although the claimant asked for “an independent person” to deal with the case, it was appropriate for Ms Mitchell to investigate the claimant’s grievance and Ms Nelder to review the investigation and report on this. Neither had been involved with the claimant in some manner so as to suggest some negative influence or predisposition towards him. The respondent’s outcome letter is consistent with the investigation material which is both expansive and detailed. We went through the steps undertaken by the respondent at the hearing and made findings of fact in respect of the main steps undertaken. We are satisfied that the respondent’s undertook a thorough investigation and dealt with this within a reasonably timely manner. Therefore, we find that the respondent took the claimant’s grievance seriously. It is no doubt regrettable to the respondent that Ms Daly did not send the outcome letter to the claimant promptly, but we note that the claimant did not raise any concerns about the delay other than issuing proceedings during the Christmas holidays.[104]We note that the claimant had previously raised other grievances (which are not the subject of these proceedings) and that the grievance against Ms Preston was dealt with in a timeframe consistent with the claimant’s other grievances.[105]So, the allegation is not made out, except for the delay in providing the outcome letter. It is implausible that the respondent would finalise the grievance outcome and, then deliberately withhold this from the claimant. As we accept Ms Daly’s explanation that this was an oversight in sending the claimant his grievance outcome, we find that this was in no way connected to his race or sex. We cannot see how an error in providing the claimant with the outcome to a grievance, which was not accepted, could amount to violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment so the harassment complaint is not made out. Similarly, we cannot see how there could possibly be any merit in the victimisation complaint. Issue 14.5 (amended duties in October and November 2019)[106]There is no reference in the claimant’s statement to him asking for amended duties in the autumn of 2019. According to Ms Daly, whose evidence on this point was not disputed, the claimant was on protracted sick leave from 6 November 2019 to 15 July 2020 when he returned on a succession of different adjusted roles.[107]It is not clear what adjustments the claimant sought in October or November 2019 (if indeed he sought any adjusted duties at all). This is not an allegation of disability discrimination, so we only consider this in respect of direct discrimination and harassment on the grounds of his sex and race and victimisation.[108]The claimant merely asserted that 2 white colleagues have been afforded reasonable adjustments, whereas he had not. There was no information provided to go beyond our findings of fact above, which do not identify any less favourable treatment. Consequently, this allegation is rejected. Summary[109]We reject all of the claimant’s discrimination complaints because in all instances, save as to the delay in providing the grievance outcome (part of allegation 14.4) he has not established any less favourable or detrimental treatment. We are satisfied that the 14.4 detriment, such as it was, in failing to provide the claimant with an outcome to his grievance was in no sense related to his sex or race or his protected act. The claim for the non-payment of his overtime has no merit whatsoever. In any event, a substantial part of the claimant’s allegations, as identified above, are out of time and, even if there had any merit, there is no basis on which those claims should proceed.
The Hearing
[1]This has been a remote hearing which has not been objected to by the claimant and the respondent. The form of remote hearing was a video hearing through HM Courts & Tribunal Service Cloud Video Platform (“CVP”). All the participants were remote (i.e. no-one was physically at the hearing centre). A faceto-face hearing was not held because all of the outstanding issues in this case could be determined in this remote hearing.[2]The respondent made an application to reimburse part of their legal costs on 18 December 2020. The application was detailed and enclosed copies of:(1) the respondent’s costs schedule (with billing guide and barristers’ invoices); and(2) various correspondence between the parties and the Tribunal in respect of costs.[3]The respondent’s original application was declined by Employment Judge Tobin. The respondent’s requested that that decision be reviewed by the full Tribunal that heard the case and this is the outcome of that full review.[4]We (i.e. the Tribunal) were presented with an agreed hearing bundle of 122 pages. Neither party had prepared witness statements. The claimant was asked at the hearing if he wanted to give evidence and he chose to provide oral submissions only. Ms Rezaie, on behalf of the respondent, confirmed that she had no oral evidence to adduce and said she would rely on the written submissions contained in the respondent’s original application augmented by oral submissions. The Case[5]By a Reserved Judgment promulgated on 23 November 2020, the claimant’s following claims were rejected and dismissed:a. direct race discrimination, in breach of s13 Equality Act 2010 (“EqA”);b. direct sex discrimination, in breach of s13 EqA;c. victimisation, in breach of s27 EqA;d. Non-payment of overtime, contrary to s13 Employment Rights Act 1996 (“ERA”); ande. Harassment on the grounds of the claimant’s race, in breach of s26 EqA. In addition,f. 8 of 15 substantive complaints of various discrimination, were found to be out of time and the Tribunal determined that if there was any merit to those claims, it would not have exercised its discretion (on just and equitable principles) to allow those complaints to proceed.[6]Full Reasons were provided with the Judgement of 23 November 2020 and these ran to 24 pages. This decision should be read in conjunction with that Judgment and Reasons.[7]The case concerned 2 sets of proceedings, in respect of allegations of various types of prohibited conduct based originally on 3 different protected characteristics, race, sex and disability discrimination and non-payment of wages. There were 6 preliminary hearings before the final hearing, which was heard over 5 days. The parties presented a hearing bundle and additional documents of around 1,000 pages and the claimant called 2 witnesses and relied upon the statements of 2 more colleagues. The respondent needed to call 3 witnesses to deal with the claimant allegations.[8]Our decision was clear and robust; indeed, such was the claimant’s poor behaviour both during the events under scrutiny and in the pursuit of these proceedings, that it would not have done justice to the situation by minifying our findings. The disability cases were dismissed by a Judge prior to the final hearing despite the claimant repeated challenges to that determination. At the final hearing, allegations of race discrimination and sex discrimination were made against 3 of the claimant’s colleagues and/or managers which were very serious, potentially jobthreating and possibly career-threatening. The allegation that white members of staff were provided with stab vests and black staff were not, was shocking in its implications.[9]Our decision said that during the course of his employment the claimant was negative, challenging and badly behaved and that he had a history of making complaints when thing did not go his way. We did not believe his story that he had substantial memory loss. The claimant pursued claims that we regarded as without merit or proper foundation. The evidential basis for his complaints was not there and indeed he often misrepresented the situation. We spend some time dealing with the claimant’s “skive” day, in which he deliberately and dishonestly absented himself from duties and we found his allegations of his purported mistreatment arising from this event to be trivial and ludicrous. We found the claimant to be both unreliable and untruthful.
The Relevant Law
[10]Rule 75(1)(a) of the Employment Tribunal Rules of Procedure1 – coupled with Rule 76 – gives the Employment Tribunal’s power to make a cost award against one party to the proceedings (“the paying party”) to pay the costs incurred by another party (“the receiving party”) on a number of different grounds. These grounds include circumstances where:a. A party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting of proceedings (or part thereof) – Rule 76(1)(a).b. A claim had no reasonable prospects of success – Rule 76(1)(b).[11]Costs” for these purposes mean “fees, charges, disbursements and expenses incurred by or on behalf of the receiving party “including expenses that witnesses incurred for the purposes of, or in connection with, attendance at the tribunal hearing” – see Rule 74(1).[12]The respondent pursued its application on the basis of both Rule 76(1)(a) and Rule 76(1)(b). 1Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237)[13]Rule 78(1) of the Tribunal Rules provides that a cost order can be made for:a. costs assessed by the Tribunal, which cannot exceed £20,000; orb. a detailed assessment of costs in accordance with the Civil Procedure Rules of the County Court (for award that may exceed £20,000); orc. an amount of cost which has been agreed between the parties.[14]Rule 84 provides that we (i.e. the Tribunal) may have regard to the paying party’s ability to pay. Our Determination[15]We accept that the respondent has incurred substantial costs in responding to these proceedings. Whilst the amounts quoted in the Costs to Date Summary may represent an accurate picture of the costs actually incurred for all claims, we note that this does necessarily record cost which might be deemed potentially recoverable from the other party should the claim be subject to detailed assessment. That said, the respondent has been clear, they do not seek to recover all of their legal costs from the claimant. The total legal costs were £39,395.50. Of this amount £15,300 represents counsel’s fees (£9,900 for the final hearing and £5,400 for the preliminary hearings). The respondent’s in-house legal costs were modest at £24,095.50 and do not over-state the amount of work we assess was required, which was extensive. We have see a brief billing guide for the internal costs recorded and we have scrutinised the fee notes for counsel, which we also regard as modest and sustainable. Costs in Principle[16]The respondent provided a detailed application and Ms Rezaie make a compelling submission. We will not rehearse the respondent’s arguments in detail, but these were relevant and persuasive. Ms Rezaie drew our attention to paragraphs 26, 61, 64, 70, 72, 76, 81, 82, 87, 91, 96, 99, 101, 105, and 108 in our original Judgment. Mr Rezaie said that of the claimant’s 27 various allegations all but 1 fell at the first hurdle, without transferring the burden of proof to the respondent. The allegation that the respondent’s might have had a case to answer was the delay in providing the claimant with his grievance outcome and, she contended – which we accept – the respondent’s relevant witness explained the circumstances such that this less favourable treatment was in no way tainted by discrimination on the grounds of the claimant’s race.[17]She referred us to correspondence where the claimant was warned of a likely cost application, see for example 10 August 2020. He was given every opportunity to seek independent legal advice. Indeed, he was explicitly advised to do so by the respondent’s solicitor on 29 May 2020 and 22 July 2020. As well as pursuing claims which he knew, or ought to have known, was unmeritorious, Ms Rezaie contended that the claimant escalated costs unnecessarily. She referred to correspondence in the hearing bundle and contended that the claimant was disruptive in proceedings, particularly over: repeatedly challenging the Tribunal’s determination that he was not a disabled person under s6 EqA; disputing the list of issues; disclosing documents which were both irrelevant and late; and agreeing a hearing bundle. It required a number of separate judges to sort out these matters which could and should have been capable of agreement. Indeed 6 hearings were necessary prior to the full merits hearing, where only 1 or 2 at most might have been appropriate. Ms Rezaie referred to correspondence and time required to deal with these preparatory steps which was excessive, arising from the claimant’s disruptive approach which bordered on vexatious. The respondent contended that its costs were either deliberately or carelessly driven up from the claimant’s unreasonable conduct.[18]The claimant opposed the application in correspondence and his arguments were very brief. In essence he stated that the respondent had the opportunity to settle the case, which misses the point that he chose to make a substantially unmeritorious claim against his employer. The claimant reiterated the criticism of Judge Tobin that he was poorly managed as if this somehow absolved his from his poor behaviour. He said that bringing proceedings was not vexatious or unreasonable and was not brought in bad faith. At the costs hearing, the claimant said that he was not fully prepared for the substantive hearing because of the delay in the respondent providing a finalised hearing bundle. We prefer Ms Rezaie’s account as being the more accurate, i.e. that delays in preparatory steps were entirely of the claimant’s making and that his lack of preparedness was his entirely responsibility.[19]Although the claimant said that he accepted the outcome, it was disappointing that he revisited many aspects of the decision to indicate that he clearly did not accept the outcome.[20]Whilst it is not necessary that a party give a prior warning about costs before it can pursue a cost application, we accept that the claimant was warned by the respondent’s representatives about the consequences of pursuing such unmeritorious proceedings.[21]Having heard the claim in its entirety, we were convinced that the claimant was dishonest in giving evidence and we had significant difficulties in believing anything he said. We regret such a blunt expression but feel compelled to state the obvious, as the claimant displayed little insight into his behaviour. He wanted to work in the back office, and he would say anything, attack anyone or hurl undeserved allegations at anyone who stood in his way.[22]The claimant may put some emphasis upon his contention that he was up against a solicitor, counsel and a large public sector employer and that he did not obtain legal support. As the claimant was a litigant in person it is appropriate for him to be judged less harshly in terms of his conduct than a litigant who was professionally represented. Justice requires that Tribunals do not apply professional standards to laypeople who may well be embroiled in legal proceedings for the first time in their lives – see AQ Limited v Holden2. Laypeople are likely to lack the objectivity and knowledge of the law and practice, which a professional legal adviser can bring. However, the claimant was dysfunctional. It appears that anyone who 2 [2012] IRLR 648 would not agree to what he wanted was treated as an enemy and he went to extraordinary lengths to attack or undermine work colleagues, such as making fanciful and malicious claims against both Mr Carver and Ms Daly.[23]“If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harasses his employers or for some other improper motive, he acts vexatiously”; see ET Marler Limited v Robertson3. Simply being “misguided” is not sufficient to establish vexatious conduct: AQ Limited v Holden. We are satisfied that the claimant brough his claim against his former managers out of spite in order to harass them. The claimant conducted these in a vexatious manner. The wages claim, was particular egregious, as set out above. In any event, in addition, the claimant’s claims and conduct in advancing those claims in these proceedings exceeded the threshold such that we regard this as “unreasonable”.[24]Even where the threshold tests are met, to Tribunal still has a discretion whether or not to make an order. That discretion should be exercised having regard to all the circumstances. We note that, in the Employment Tribunal’s jurisdiction, cost orders are very much the exception and not the rule: see Gee v Shell UK Limited4 and McPherson v BMP Paribas5.[25]As Sedley LJ said in Gee v Shell UK Limited: It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers and that in sharp distinction for ordinary litigation in the United Kingdom losing does not ordinarily mean paying the other site’s costs.[26]What this means is that people are entitled to come to an Employment Tribunal to say, without fear of punishment in the form of a costs order, “this is what has happened to me, I think it is unfair, I think it is unreasonable, I think it amounts to discrimination, what do you think?” Costs remain the exception rather than the rule in such proceedings. That said, in contrast, employers should not be subject to expensive, time-consuming, resource draining claims that are without merit. The Employment Tribunal Rules say that we may order costs in the circumstances set out in Rule 76 and if the conduct of a litigant meets that definition, then we have a discretion to order costs.[27]The Employment Appeals Tribunal has reminded us, in the aftermath of a number of cases (including Daleside Nursing Home Limited v Matthews6 and Dunedin Campbell Housing Association v Donaldson7) which appeared to indicate the contrary, that the mere fact that the claimant may have given false evidence is not reason on its own to automatically order costs against him. We should look at the case as a whole: see Kapoor v Governing Body of Barnhill School8. 3 1974 ICR 72 NIRC 4 [2003] IRLR 82 5 [2004] IRLR 558 6 UKEAT20519/08 7 UKEAT0014/09 8 UKEAT/0352/2013[28]Yerrakalva v Barnsley Metropolitan Borough Council9 emphasised that the Tribunal has a broad discretion, and we should avoid adopting an over analytical approach, for instance by dissecting the case in detail or attempting to compartmentalise the relevant conduct under separate headings.[29]In this respect, it was not irrelevant that a layperson may have brought proceedings with little or no access to specialist help and advice. Laypeople are, of course, not immune from orders for costs as many litigants in person are found to have behaved vexatiously or unreasonably even with proper allowances made for their inexperience and lack of objectivity. However, the claimant’s pursuit of this matter was cynical and his behaviour opportunistic as our determination makes this clear. The non-legal members in particular, although indeed the whole Tribunal, regarded the claimant’s pursuit of this case as being so unmeritorious as to bring the anti-discrimination legislation into disrepute. The claimant used the EqA as a stick to try to beat his employers and he was wholly unreasonable to do so. We regard it was appropriate in the circumstances to make a cost award against the claimant. The amount of our Costs Award[30]The aim of an order for cost is to compensate the party which has incurred expense in winning the case and not to punish the losing party: see Lodwick v London Borough of Southwark10. We have a wide discretion which should not be fettered by the case law: the proper test is for us to exercise our powers under the Employment Tribunal Rules “justly”: see Benyon & Others v Scadden & Others11. Proportionality may be a feature, although there could be a substantial disproportionality between the costs incurred and the award given: see Brash-Hall v Getty Images Limited12. The respondent incurred total cost of £39,395.50 – which we determine was reasonable and properly incurred. It sought reimbursement of 38.84% of these costs – which we regard as modest.[31]At the cost hearings, the claimant raised his impecuniosity. At various stages, the Judge explained in detail to the claimant the financial information that should be produced. The Judge explained to the claimant the consequence of not giving evidence, which precluded the Tribunal from making findings of fact. If the claimant wanted to give evidence, then it was explained to him that the respondent would have the opportunity to cross-examine him, and the claimant thereupon declined to be questioned about his financial means. The claimant has not provided any clear financial details that we might consider, so we are in a position that there is only limited information available to us to take into account. Both sides agree that the claimant is still employed by the respondent; he is married with a family. We do not know if his wife works or if he has savings.[32]Where a party was relying upon limited financial means, we expected to see a detailed breakdown of their finances, supported by bank statements, budget forecasts, copies of bills, etc. So given the absence of corroborative evidence we 9 [2012] ICR 420 10 [2004] IRLR 554 11 [1999] IRLR 700 12 [2006] EWCA Civ. 531 were reluctant to accept that the claimant’s finances were limited. That said, the respondent has not produced any evidence of the claimants means, other than indicating that he remains in employment.[33]We regard it as just to order the claimant to repay the amount sought by the respondent. This is a proportion of their total legal bill. A cost order is exceptional, and the claimant’s behaviour was exceptional - at points vexatious and, at least, manifestly unreasonable. We have made this clear in our decisions and as these are public records, the respondent and their witnesses can feel suitably vindicated.[34]We are mindful that the Employment Tribunal operates in a largely no-cost regime, and we do not wish to deter genuine complainants to the Employment Tribunal. That said, we do feel that a clear message is required and one that will have a significant effect upon the claimant.[35]We have no evidence to support any adverse effect that a high cost order would adversely affect the claimant. Therefore, we determine that £15,300 is a just amount to order the claimant to pay as a contribution towards the respondent’s legal costs. We have no information that the claimant would be unable to meet this sum, either through savings or through a loan. Thereby our costs award should be enforceable, which is important to the Tribunal. In all of the circumstances we regard this award as just and should be paid.