Ms W Blake-RankenMrs S JearyMr T Perry (instructed by counsel) for respondentDate 25 November 2024
JUDGMENT
[1]The claimant’s claim of failure to make reasonable adjustments (sections 20-21 Equality Act 2010) is well founded and succeeds.[2]The claimant’s claims of direct disability discrimination about the boots and the bin key are well founded and succeed. These claims were presented to the Tribunal within the time limits (section 123 Equality Act 2010).[3]The claimant’s other claims of direct disability discrimination are not well founded and are dismissed.[4]The claimant is awarded the total amount of £12,271.18 which is made up as follows:a. Injury to feelings: £10,000b. Interest on injury to feelings: £866.67c. Loss of earnings: £1,292.40d. Interest on loss of earnings: £112.01 Case Number: 3205087/2022
REASONS
[1]By judgment given orally on 5 July 2024 and sent to the parties on 12 July 2024, the claimant’s claims of failure to make reasonable adjustments and direct disability discrimination (about the bin key and boots only) were upheld. The claimant’s other claims of direct disability discrimination were dismissed. The claimant was awarded £12,271.18.[2]By application dated 11 July 2024 the claimant’s representative (his mother) made an application for a preparation time order. The respondent objected to the application in writing on 17 July 2024. The claimant made further written representations on 18 July 2024. The parties requested that the matter be decided without a hearing.[3]On 20 September 2024 the Tribunal wrote to the parties to inform them that the Tribunal panel would meet on 25 November 2024 to decide the claimant’s application. The parties were told not to attend, but were invited to make further written representations by 18 November 2024. No further written representations were made.[4]The Tribunal panel (Employment Judge Gordon Walker; Ms W BlakeRanken and Mrs S Jeary) met on 25 November 2024 to decide the application.[5]The claimant’s application was made on the following grounds:5.1 An application under rule 76(1)(a) that the respondent’s representative 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;5.2 Under rule 76(1)(b) that the response has no reasonable prospect of success.[6]The claimant submitted that:6.1 The respondent’s representative’s conduct was contrary to rule 76(1)(a) because:6.1.1 The respondent did not provide the claimant with paperwork from the first investigation on 1 June 2021;6.1.2 The respondent did not provide the claimant with the bundle until 5 February 2024;6.1.3 The respondent did not provide the claimant with its witness statements until 2 May 2024; and6.1.4 The respondent deliberately changed the times of the text messages at page 218 of the hearing bundle.6.2 The response had no reasonable prospect of success because the clear documentary evidence showed that the respondent failed to provide fit for purpose boots, a working bin key, or make reasonable adjustments.
Legal principles
[7]Rule 76 of the Employment Tribunal Rules states, so far as is relevant: 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.[8]Rule 80 of the Employment Tribunal Rules states, so far as is relevant: 80 (1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”.[9]An award of costs or a preparation time order in the employment tribunal is an exception rather than the rule: Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420.[10]“The hallmark of a vexatious proceeding is… that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”: Attorney General v Barker 2000 1 FLR 759 cited with approval in: Scott v Russell 2013 EWCA Civ 1432.[11]“Unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ — Dyer v Secretary of State for Employment EAT 183/83. In determining whether to make an order under this ground, a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct — McPherson v BNP Paribas (London Branch) 2004 ICR 1398.[12]In Opalkova v Acquire Care Ltd EAT 0056/21 the EAT held that the tribunal had erred by considering whether the ET3 as a whole had reasonable prospects of success. Having reviewed the definitions of ‘claim’ and ‘complaint’ set out in rule 1 of the Tribunal Rules, the EAT confirmed that ‘claim’, in the present context, means each separate cause of action, not the whole of the proceedings brought in the claim form, and that each cause of action must be considered separately. There were three key questions: first, did the response have no reasonable prospect of success when submitted, or did it reach a stage where it had no reasonable prospect (the objective ‘threshold’ test for making a preparation time order)? Secondly, at the stage when the response had no reasonable prospect of success, did the respondent know that was the case? Thirdly, if not, should the respondent have known? In considering the third question, a tribunal is likely to assess a legally represented respondent more rigorously.[13]In Carroll-Cliffe v Pembrey and Burry Port Town Council 2024 EAT 125, in declining to make a costs award against a respondent for a response having no reasonable prospects of success, the EAT held that the tribunal was entitled to have regard to the merits of the respondent’s defence to the rest of the clams (which were unsuccessful).[14]In respect of awards against a representative pursuant to rule 80, the tribunal must apply a three-stage test (Ratcliffe Duce and Gammer v Binns (t/a Parc Ferme) EAT 0100/08 and Ridehalgh v Horsefield and other cases 1994 3 All ER 848):14.1 first, has the legal representative acted improperly, unreasonably, or negligently?14.2 secondly, if so, did such conduct cause the applicant to incur unnecessary costs?14.3 thirdly, if so, is it in the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs? 15. ‘Improper’ covers, but is not confined to, conduct that would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. ‘Unreasonable’ describes conduct that is vexatious, designed to harass the other side rather than advance the resolution of the case. ‘Negligent’ should be understood in a non-technical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession (Ridehalgh v Horsefield 1994 3 All ER 848, and Medcalf v Mardell and ors 2002 3 All ER 721).
Conclusions
[16]The respondent failed to comply with the case management order dated 6 June 2023 as it provided the hearing bundle and witness statements late. This was not unreasonable, vexatious, abusive, improper, or negligent conduct. It is common for there to be delays in complying with the case management orders. Although there was late compliance, the hearing bundle and witness statements were provided in good time before the hearing, and this did not prejudice the claimant’s preparation for the hearing. We accept that the respondent’s submission that they disclosed all documents about the June 2021 investigation. We also accept that there were good reasons for the delay in complying with the case management orders caused in part by the fact that the respondent’s main witness had left their employment, and they needed a witness order to compel him to give evidence and to assist them in preparation of their defence.[17]The respondent produced a sheet setting out the times of the text messages (page 218). This was inconsistent with the times on the claimant’s screen shots of his text messages. We accepted the claimant’s evidence as to the times of the text messages. We reject the claimant’s submission that the respondent deliberately provided false evidence about the times of the text messages. We accept the respondent’s submission that the sheet was prepared for the purposes of the internal process and not for the purposes of litigation, and that it was prepared based on Mr Lee’s text messages, which were subsequently deleted when he left the respondent’s employment. We conclude that the errors were unintentional and therefore did not constitute unreasonable, vexatious, abusive, improper, or negligent conduct.[18]We reject the claimant’s submission that the response had no reasonable prospect of success. The response had reasonable prospects of success. There was evidence to support both parties’ case. This evidence needed to be tested at the hearing. This was done by way of cross examination and submissions at the hearing. We preferred the claimant’s evidence on the claims that were upheld, for the reasons given at the hearing.[19]It therefore follows that the threshold for making a preparation time order under either rule 76 or rule 80 has not been met, and the claimant’s application is therefore dismissed.