Mr S Abbasi and Mr K Khawaja v My Lahore Birmingham Ltd and AF Restaurants Ltd: 3205774/2022 and 3200336/2023
EMPLOYMENT TRIBUNALS
Case No 3205774/2022, 3200336/2023
Between
Mr S Abbasi and Mr K KhawajaClaimantMy Lahore Birmingham Ltd and AF Restaurants LtdRespondent
Before
Employment Judge ReidDate 2 April 2026
JUDGMENT
[1]The First Claimant’s and the Second Claimant’s claims for automatic unfair dismissal under s103A Employment Rights Act 1996 are struck out under Rule 37(1)(a) Tribunal Rules 2013 on the basis that the claims have no reasonable prospect of success.[2]The First Claimant’s claim for unpaid wages is struck out under Rule 37(1)(a) Tribunal Rules 2013 on the basis that the claim has no reasonable prospect of success.[3]The claims which continue for both Claimants are therefore(1) the ordinary unfair dismissal claims and(2) the detriment claims under s47B Employment Rights Act 1996 – see separate Orders.[4]The Respondents said that they may make a further strike out application (potentially in relation to time limit issues on the detriment claims) in the light of the Claimants’ response to the Orders made at this hearing – see separate Orders. Case Numbers: 3205774/2022 & 3200336/2023 JUDGMENT having been sent to the parties on 18 July 2024 and written reasons having been requested by the Respondent in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This preliminary hearing was listed at the previous preliminary hearing on 9 May 2024 to decide the Respondents’ application for a strike out or a deposit order.[2]The Respondents provided written submissions on 17 June 2024 (updated on 4 July 2024 with page references).[3]The Claimants’ representative provided two documents on the morning of the hearing – submissions in response to the application and a document called detriment in relation to the First Claimant – when I asked what this document was I was told it was a summary of the further information already provided by the First Claimant in March 2024 at page 58 of the bundle.[4]There was an electronic bundle of 339 pages paginated to page 333.[5]I heard oral submissions on both sides. Relevant law – strike out[6]Rule 37(1)(a) of the Tribunal Rules 2013 provides that a Tribunal may strike out all or part of a claim or response on the grounds that it has no reasonable prospect of success (the other grounds in Rule 37(1) were not relied on by the Respondents). This is a high threshold.[7]The task of the Tribunal is to consider with care the pleaded case and whether on a fair assessment it or any part of it passed the threshold of presenting a reasonably arguable case, taking it at its highest.[8]Where the central facts are disputed, a claim should not normally be struck out, where witness evidence will be required to decide those disputed facts (Ezias v North Glamorgan NHS Trust [2007] ICR 1126).[9]I considered Cox v Adecco [2021] ICR 1307 including as to taking the Claimants’ claims at their highest. This case also identified (albeit in relation to litigants in person which the Claimants are not, although there have been various changes of representative on their side along the way) that reasonable steps must be taken to identify the claims and issues and that it is not possible to decide no reasonable prospects if the Tribunal does not know what the claim is.[10]A whistleblowing claim should not usually be struck out where the central facts are in dispute (Ezsias v North Glamorgan NHS Trust [ 2007] ICR 1126). Relevant law - deposit orders[11]Rule 39(1) of the Tribunal Rules 2013 provides for a deposit order of up to £1,000 per argument or allegation as a condition of a party continuing to advance a particular allegation or a particular argument. If an order is made, Rule 39(2) provides that a tribunal shall make reasonable enquiries into the party’s ability to pay the deposit and have regard to that information when deciding the amount of the deposit.[12]Hemdan v Ishmail [2017] ICR 486 (paras 10-17) sets out the principles to be applied as follows.[13]The purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage those claims by requiring a sum to be paid and by creating a risk of costs if the claim fails. The purpose is not to make it difficult to access justice or to do a strike out by the back door. The requirement to consider a party’s means to decide the amount of the deposit order is consistent with that purpose. The cap of £1,000 is also inconsistent with any view that the purpose of a deposit order is to make it difficult for a party to proceed to a final hearing and thus access justice.[14]The test in Rule 39 is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, which is different to the strike out test which considers whether there is no reasonable prospect of success. The test is therefore less rigorous in that sense but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or defence. The fact that a tribunal is required to give reasons emphasises the fact that there must be a proper basis.[15]The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini trial of the facts is to be avoided, just as in a strike out application, because it defeats the object of the exercise. If there is a core factual conflict, it should properly be resolved at a full merits hearing where evidence is heard and tested.[16]Once the tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective having regard to all the circumstances. That means that regard should be had for example to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved and the case is likely to be allocated a fair share of tribunal resources are also relevant factors. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest.[17]An order to pay a deposit must be capable of being complied with. A party without the means or ability to pay should not therefore be ordered to pay an amount he or she is unlikely to be able to raise. The proportionality exercise must be carried out in relation to a single deposit order or where they are imposed, a series of deposit orders. If the amount is set at a level at which the party cannot afford to pay it, the order will operate in a way which impairs access to justice. Automatic unfair dismissal claims s103A ERA 1996 (both Claimants)[18]It was not disputed by the Claimants that the Respondents closed the restaurant premises when its lease was not renewed and that all the 32 employees were made redundant; it was also not disputed that alternative roles in Birmingham for both Claimants were identified (First Claimant page 204 (2 vacancies), Second Claimant page 285 (1 vacancy)).[19]The lease entered into in 2019 had a term until 1 April 2022 and it was the Landlord’s decision not to extend the lease any further though the Respondents had tried to get it extended as far as it could.[20]There were no selection issues because all staff were made redundant (page 122).[21]The meetings held and the documents sent to the Claimants were consistent with a redundancy process for them and for the other staff.[22]The Claimants’ case was that notwithstanding the restaurant closure, the site being re-developed and all staff being made redundant and the offer of alternative work for both Claimants, the only or principal reason for their dismissal was their protected disclosures – but that would have meant the landlord was manipulated by the Respondents into not extending the lease as a pretence and that the site development was a sham, which is rather far fetched.[23]The test is whether taken at its highest there is no reasonable prospect of success – the test is not that there must be no prospect of success.[24]There are no outstanding un-complied with case management orders regarding this claim and the claim is clear.[25]I decide that there is no reasonable prospect of the Claimants succeeding in their claim that the sole or principal reason for dismissal was their protected disclosures: all employees were made redundant, a redundancy process was conducted with all staff including the Claimants, there were no selection issues, the premises were closing and the site being redeveloped; it was precipitated by the decision of the landlord; both Claimants were offered alternative work in any event, also inconsistent with any detrimental treatment for making protected disclosures.[26]Both Claimants’ claims under s103A ERA 1996 (automatic unfair dismissal) are therefore struck out under R 37(1)(a) as having no reasonable prospects of success. Ordinary unfair dismissal (both Claimants)[27]The First Claimant was ordered to provide particulars of why said his dismissal was procedurally unfair at the previous preliminary hearing on 4 May 2024 (para 13) which he hasn’t done. No such Order was made in relation to the Second Claimant.[28]I was informed today that the Claimants have been hampered by lack of funds but that they have written to Osmans Solicitors saying that they will be in funds within 7 days, assisted by family and friends. This funding issue has been present since the second preliminary hearing in October 2023 before Judge Lewis.[29]The effective date of termination for both Claimants is in issue. For the First Claimant he says it was 30 September 2022 and not the earlier date the Respondent gives of 9 August 2022 – if the First Claimant is right, what happened in that gap may be relevant to whether a fair procedure was followed. In relation to the Second Claimant the effective date of termination is also in issue but only by a few days (he says 17 November 2022 which is a few days earlier than the Respondent’s date of 21 November 2022). These are factual matters in dispute.[30]I do not strike out this claim taking into account missing information from the Claimants can be dealt with by further case management orders with a short deadline; I also do not make a deposit order because the Claimants have not yet said what it was which was procedurally unfair and they are being given a final opportunity to do so.[31]The orders I make are that both Claimants set out why their dismissals were procedurally unfair within 21 days of today’s date (2 August 2024) in a document in numbered paragraphs setting out each aspect of the procedure they say was unfair and why it was unfair and that both provide a schedule of loss on the same date to cover all remaining claims. Wages claim (First Claimant only)[32]Both Claimants were ordered to provide a schedule of loss by 23 May 2024.Neither has done so.[33]For the First Claimant this means in particular he has still not said what he says are the wages he was not paid.[34]The further detriment document provided today says that he has asked for his bank statements and then will then send the schedule of loss.[35]Just because the First Claimant has had a period without funding being in place for legal representatives to prepare documents for him does not stop him saying what wages he says he is owed – it is a straightforward matter not requiring legal expertise.[36]He has had the opportunity to say what the unpaid wages are but has said nothing, not even an estimate of the amount or what type of pay it was or approximately when he was not paid it.[37]He could have provided estimates even if he said he would have to check it against his bank statements; instead he did nothing.[38]Given he has not identified what this claim is for without good reason, I strike it out because it has no reasonable prospects of success because the First Claimant has not said what he is owed – there is therefore no claim with any reasonable prospects because he has not identified what it is despite the opportunity to do so. Detriment claim (s47B Employment Rights Act 1996)[39]The Claimants’ cases on protected disclosure detriment are still in a state of confusion, it not being clear even now what each and every protected disclosure was and when they were made and what were the subsequent detriments and when they occurred; it is consequently therefore not even possible even to tell whether the claimed detriments post date the claimed protected disclosures.[40]On 17 July 2023 Judge Crossfill ordered further information about when and what the protected disclosures were and when and what were the subsequent detriments relied on (Orders 1.3-1.4 and 2.4-2.5).[41]By the next preliminary hearing on 23 October 2023 they had not been provided. They were provided on 7 March 2024 (First Claimant page 58 Second Claimant page 73).[42]Both were narrative accounts without clear identification of each claimed protected disclosure and each claimed detriment; there has been no preliminary hearing for case management since then to clarify these particulars and to consider them in the light of what was said in the claim forms.[43]It has not helped that the Claimants have had various representatives at the previous preliminary hearings until May 2024 when Ms Ahmed was instructed for the preliminary hearing on 9 May 2024. The Claimants have not been litigants in person but equally their representation has appeared to be changeable given the Second Claimant was not represented at the first preliminary hearing in July 2023, each Claimant was represented by different solicitors at the second preliminary hearing in October 2023 (who were only instructed to ask for an extension of time) and then both by Ms Ahmed at the preliminary hearing in May 2024.[44]The Respondents had previously accepted in relation to the Second Claimant that he had made a protected disclosure on 24 November 2021 (response for Second Claimant para 10) but that was before these particulars were provided.[45]I asked Ms Ahmed today whether the action said to be the protected disclosure by the Claimants had been their written grievances (the Respondents’ understanding of their cases), in relation to the First Claimant dated 7 January 2022 (page 173) and in relation to the Second Claimant dated said in the index to be dated 6 Jan 2022 (page 226 – except para 9 of the Respondent’s response says it was made on 24 November 2021).[46]I asked this firstly because the Respondents said that it was the written grievances which were relied on (Respondents’ submissions para 61) and secondly because Ms Ahmed also referred to oral disclosures being made prior to the written grievances - however she then confirmed that it was not being claimed that there were any protected oral disclosures before the written grievances – the difficulty with that is that both the Claimants’ further particulars provided in March 2024 did not clearly identify the dates of actual disclosures relied on in the way specified by Judge Crosfill in his Order – it is not clear from either Claimants’ further particulars that they do only rely on their written grievances as being the protected disclosures in their claims because they also refer to raising issues with managers and sending emails about concerns prior to their formal grievances.[47]Given it is not clear which are the claimed protected disclosures, whether these are only written or also oral and whether any claimed detriments (also yet not clearly identified) were after the claimed protected disclosures, this claim remains in a muddle.[48]I can see that there have already been a number of preliminary hearings to iron out the issues and the Claimants have not complied with orders or have complied late. But it remains the case that this claim in particular is not at all clear because the key elements of what and when were the protected disclosures and what and when were the detriments are not clarified – although the Claimants attempted in March 2024 to clarify matters (and so it cannot be said they have not cooperated at all in this process) I cannot fairly assess the claim at its highest because the key constituent elements in this claim are not clear. I also cannot assess whether it has little reasonable prospects of success for the purposes of a deposit order because of the same muddle.[49]I note there are also time limit issues identified by Judge Elgot at paras 6 and 8 but it remains the case that the constituent elements of the claim are not yet clear which makes assessment of any time limit issues unsuitable as a strike out (or deposit order) issue on its own.[50]This however is a matter which can be dealt with by case management orders within a short timeframe because the Claimants say that their representative will be in funds within 7 days.[51]I therefore do not strike out or make a deposit order in relation to this claim and insetad make the following orders.[52]Both Claimants are each to prepare a numbered table or a numbered list of the claimed protected disclosures, providing in relation to each the information set out in Judge Crossfill’s order.[53]Both Claimants are each to prepare a numbered table or a numbered list of the claimed detriments in relation to each the information set out in Judge Crossfill’s order.[54]Both documents should extract the relevant information each Claimant has provided in their March 2024 particulars into this format and include only matters included in those particulars (but without copying and pasting long sections of narrative from the particulars).[55]A narrative of what happened should not be provided, what is needed is a focussed numbered list.[56]These tables/lists should be sent to the Tribunal and to the Respondents by 2 August 2024.[1]The first claimant started Early Conciliation on 3 November 2022 and submitted his ET1 on 4 December 2022. The second claimant started Early Conciliation on 5 February 2023 and submitted his claim on 17 February 2023. The claimants both worked at a restaurant in Barking. Both claimants were represented at the time. The respondents are connected companies. Due to the claimants’ different employment histories and the corporate structure the claimants worked at the same Barking restaurant but they were employed by different companies.[2]The claimants both pursued claims for automatic unfair dismissal contrary to section 103A Employment Rights Act 1996, ordinary unfair dismissal and that they were subject to detriments due to having made a protected disclosure. The claims were not well particularized at the outset. There have been multiple attempts since to obtain clarity from the claimants about their claims.[3]In their ET3s the respondents said that there was a redundancy situation. The Barking restaurant was going to close because the landlord had refused to extend their lease. As a result all employees were placed at risk of redundancy and consultation was undertaken. Employees were offered the option of transferring to work at other restaurants owned by the respondents. The respondents say the reason for dismissal of both claimants was redundancy.[4]The respondents accepted that the claimants had raised a grievance on 24 November 2021 that included allegations about health and safety, working time and application of the furlough scheme, which could constitute protected disclosures. These grievances had been investigated and the outcome provided on 14 May 2022 (first claimant) and 5 April 2022 (second claimant).[5]A first preliminary hearing was held on 17 July 2023. The first claimant’s representative attended. The second claimant’s representative did not attend and neither did the second claimant attend in person.[6]At that hearing Employment Judge Crosfill made orders that the claimants provide certain further information to enable the claims to be clarified. This information had to be provided by 29 September 2023. The claimants were required to identify:6.1 details of what they said they had done which they said were protected disclosures; and6.2 details of what they said were detriments due to having made protected disclosures, specifying each act or omission, who was responsible and when it happened.[7]The claimants did not provide the further information in accordance with the orders. The Tribunal wrote to the claimants on 19 October 2023 asking for an explanation for this failure.[8]A second preliminary hearing took place on 23 October 2023. Both claimants were still represented separately and their representatives attended the hearing. The claimants’ representatives were not in a position to provide the required information and both asked for an extension of time. Employment Judge Lewis decided to postpone the hearing and make further orders. This is because the final hearing was not due to take place until January 2025, so there was sufficient time for the cases to be clarified and the respondents have an opportunity to respond. The deadline for the claimants to provide the further information was extended to 18 December 2023.[9]The claimants did not provide the required information by the deadline. On 9 January 2024 Employment Judge Beyzade wrote to the claimants informing them he was considering striking out the claims because they had not complied with Tribunal orders and were not actively pursuing their claims. The claimants were given until 18 January 2024 to object to this proposal.[10]The next preliminary hearing was held on 16 February 2024. The first claimant attended in person and the second claimant was represented. The claims were not struck out but Employment Judge Martin made an unless order in respect of the requirement to provide the further information. The claimants were directed to provide this by 8 March 2024. Employment Judge Martin also made a costs order in favour of the respondents, for the costs of attending the preliminary hearings on 23 October 2023 and 16 February 2024.[11]On 7 March 2024 the first claimant sent the Tribunal and other parties a document he described as further particulars of his claim. The second claimant’s representative submitted similar documents on behalf of the second claimant on 8 March 2024. Both claimants had provided lengthy narrative documents with a number of other documents attached. These did not clearly identify the specific information that had been requested.[12]Another preliminary hearing was held on 9 May 2024. The respondents had made an application that the claimants’ claims were struck out. This hearing was a private preliminary hearing for case management so that application could not be heard on 9 May 2024.[13]On 9 May 2024 both claimants had the same representative. At this hearing Employment Judge Elgot considered the additional information carefully and was able to identify aspects of the claim. She flagged up that what appeared to the possible detriments the claimants said they had been subjected to were largely historic and claims about those detriments all appeared to be out of time.[14]A public preliminary hearing was listed for 12 July 2024 to consider whether any claims should be struck out or the claimants ordered to pay a deposit. Again, orders had been made that the claimants provide some additional information in advance of that hearing. Specifically, the first claimant was ordered to provide details of what he said was procedural unfairness in relation to his ordinary unfair dismissal claim.[15]At the preliminary hearing on 12 July 2024 Employment Judge Reid struck out the claimants’ claims for automatic unfair dismissal on the basis they had no reasonable prospects of success. The issues in the automatic unfair dismissal claim were clear. To succeed the claimants needed to show that the sole or principal reason for dismissal was their protected disclosures. Employment Judge Reid found that this argument had no reasonable prospects of success. There were undisputed facts about the closure of the restaurant due to the lease expiring and the landlord deciding not to extend the lease further. These facts clearly indicated that the reason for dismissal was redundancy rather than any protected disclosure.[16]Employment Judge Reid did not strike out the ordinary unfair dismissal claims or the claims that the claimants had been subjected to detriments due to having made protected disclosures. This was because, despite the multiple orders to provide further information, the nature of these claims and the claimants’ cases were still not sufficiently clear. This meant that it was not possible for Employment Judge Reid to make an assessment based on taking the claimants’ cases at their highest and then decide whether or not the claims had no or little reasonable prospects of success.[17]Employment Judge Reid made further orders that the claimants provide information about these claims by 2 August 2024. The order was very specific about what information must be provided and the format for providing the information. The information that Employment Judge Crosfill had ordered needed to be provided in tabular or list form, setting out a numbered list of disclosures and a numbered list of detriments. The claimants also were both required to set out in numbered paragraphs which aspects of the dismissal procedure they said were unfair and why.[18]On 2 August 2024 the claimants’ representatives (Osman Solicitors) wrote to the respondents and the Tribunal saying they were still gathering information and requesting an extension of time to comply with the orders. Employment Judge Beyzade granted an extension until 4pm on 28 August 2024 and then a further extension until 2 September 2024.[19]On 2 September 2024 the claimants’ representatives asked for a further extension of time of 2 days to comply with the directions.[20]The claimants’ representatives provided to the Tribunal and respondents additional documents on 4 September 2024. For each claimant they provided what they said was a table of protected disclosures and a table of detriments. These documents did not include concise summaries of things the claimants said they had done that were protected disclosures. Neither did the documents include concise summaries of the specific acts or omissions by the respondent they said were detriments. Instead, the documents provided the following:20.1 For the alleged disclosures, the claimants just included short phrases. These were “whistleblowing”, “food hygiene”, “furlough fraud” and “ghost employees”. There was no information about what the claimants say they said or did, who they said it to, how or what.20.2 For the detriments the claimants listed against each of the above phrases what they labelled as detriments. This was in a table format, but it did not include the information they had been directed to provide. Again, it was a lengthy narrative but included no allegations of fact about what they said the respondents had done. The narrative was purely a description of how the claimants felt or other impacts on them. For example, they described experiencing distress and anxiety, having to seek medical treatment, facing financial difficulties. The document was rambling and incoherent, frequently repetitive and identified nothing the claimants said the respondent had actually done, other than make them redundant.20.3 The claimants provide no further information about why they said the redundancy dismissal procedure was unfair, which was required for their claims of ordinary unfair dismissal.[21]The respondents wrote to the Tribunal making an application to strike out the remaining claims on the basis that the claimants still had not complied with directions. They also sought strike out on the basis that the remaining claims had no reasonable prospects of success.[22]A preliminary hearing was already listed for 10 October 2024 for case management. This was converted to an open hearing to consider the respondents’ strike out applications. The respondents had also made an application for costs.[23]On 9 October 2024 Osman Solicitors wrote to the Tribunal and respondents to say they were no longer instructed to represent the claimants.[24]On 9 October 2024 the Tribunal informed the parties that the preliminary hearing was being postponed due to lack of judicial resources and it would be relisted at a later date.[25]The case had originally been listed for a final hearing on 28-31 January 2025 and 4 February 2025. This was vacated. The preliminary hearing was relisted for 5 February 2025. The final hearing was relisted for 22-25 and 29 July 2025. Today’s hearing[26]The issues for me to determine at this hearing were:26.1 The respondents’ applications that the claimants’ remaining claims for ordinary unfair dismissal and whistleblowing detriments were struck out.26.2 The respondents’ application for costs.[27]The respondents’ application for costs included an application for a costs order against the claimants and an order for wasted costs against their representatives. Because of this Osman Solicitors were served notice of the hearing so they could attend. There was insufficient time during the hearing for me to deal with the costs application, so I made further directions which were recorded separately.[28]The respondents provided written submissions and a short bundle of documents in support of their applications. The claimants had also sent emails to the Tribunal setting out why they said their claims should not be struck out.[29]I read the further information that had been submitted on the claimants’ behalf, which purported to comply with the orders that they provide further information. It was clear on reading these documents that the information provided did not comply with the directions that had been given. No actual disclosure had been identified, instead just generic categories of supposed wrongdoing were listed. Neither had either claimant identified anything they said the respondent had done that could amount to the detriment.[30]The claimants had previously been represented and the documents that had been submitted on their behalf that purported to comply with the directions to provide further information had been prepared by their representatives. At this hearing both claimants were representing themselves and they both attended. Therefore, I was able to speak to them directly and ask them further questions. I asked the claimants to explain to me why they said they had complied with directions. I was also able to ask them direct questions to try and elicit the further information about their claims that still had not been provided.[31]From my discussions with the claimants I ascertained the following:31.1 Both claimants relied on their grievances as having been protected disclosures. The grievance was raised in November 2021. The respondent had always accepted that these grievances could be protected disclosures but earlier in proceedings the claimants had suggested there were other disclosures, hence they had been required to provide further information.31.2 In this hearing both confirmed they were only relying on the grievance. Both claimants also said they had made disclosures to third parties around the same time but they were not able to provide the necessary information about such other potential disclosures.31.3 In terms of detriments, the first claimant informed me of the following:31.3.1 He said he had been demoted in August 2021. I noted that this predated the grievance.31.3.2 He said that the respondents had delayed dealing with his grievance. I noted that the outcome was provided in April 2022.31.3.3 The claimant said that he had been called a thief and the respondent spread rumours. I asked the claimant to tell me what exactly he said had happened and when this was. The claimant was unable to provide this information and said it was in the statements that had been provided before.31.3.4 The claimant was unable to explain what aspects of the procedure he said was unfair, in respect of the ordinary unfair dismissal claim. He just said it was because of the disclosures.31.4 In terms of detriments, the second claimant informed me of the following:31.4.1 He said it was the delay in dealing with the grievance.31.4.2 He also said it was the redundancies, which happened when they were waiting for the result of the grievance.31.4.3 He also said the redundancy was not fair because it happened before the grievance was dealt with.
The Law
[32]The Tribunal’s power to strike out a claim is set out in Rule 38 Employment Tribunal Procedure Rules 2024. Rule 38(1) includes the following list of grounds on which a claim can be struck out: “(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out)”[33]The power to strike out a claim is a draconian one. It should not be used unless there are very clear grounds for doing so. That is because any party to a case should ultimately have the opportunity to have their claim heard at a final hearing. However, in some cases a Tribunal may decide that it is appropriate to strike out a claim.[34]The Tribunal must follow a two stage test when deciding whether or not to strike out a claim (HM Prison Service v Dolby [2003] IRLR 694, Hasan v Tesco Stores Ltd UKEAT/0098/16):34.1 The Tribunal must determine whether one of the specified grounds for striking out has been established;34.2 If one of the grounds is made out, the Tribunal must decide as a matter of discretion whether to strike out or whether some other, less draconian, sanction should be applied.[35]This means that the Tribunal may strike out a claim but it is not obliged to do so. In deciding whether to exercise the power the Tribunal must have regard to the overriding objective and what is fair and just to both sides (T v Royal Bank of Scotland [2023] EAT 119).[36]In this case the respondents sought strike out on two grounds. These were non-compliance with Tribunal orders (38(1)(c)) and the remaining claims having no reasonable prospects of success (39(1)(a)).[37]When considering whether to strike out a claim because it has no reasonable prospects of success the Tribunal should take the claimants’ case at their highest.[38]The Tribunal must consider what the claims and issues are in the claim. A Tribunal should not strike out a case where it does not know what the claim is, so it should make a reasonable attempt at identifying the claim and issues first. (Cox v Adecco and ors [2021] ICR 1307).[39]A whistleblowing claim should not usually be struck out where the central facts are in dispute (Ezias v North Glamorgan NHS Trust [2007] ICR 1126).[40]In Mechkarov v Citibank NA [2016] ICR 1121 the House of Lords gave the guidance on striking out discrimination claims on the grounds they have no reasonable prospects of success. The same considerations will be relevant in whistleblowing claims. The guidance is as follows: “(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[41]The EAT said in Chandok & Anor v Tirkey UKEAT/0190/13/KN: “There may still be occasions where a claim can properly be struck out – where for instance there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura [2007] ICR 867): “... only indicate the possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[42]If a party does not comply with Tribunal orders then strike out is a possibility. It is not automatic, due to the draconian nature of strike out. The Tribunal will need to have regard to the Overriding Objective and the need to deal with cases fairly and justly. The following guidance was given in Weir Valves and controls (UK) Ltd v Armitage [2004] ICR 371: “But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.”[43]The possibility of a fair trial does not mean that a claim can only be struck out if a fair trial of the case in question is impossible. In Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 Choudhury J said: “19 I do not accept Mr Kohanzad’s proposition that the power can only be triggered where a fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees [2000] 2 BCLC 167 set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad’s proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters.” Unfair dismissal[44]The law on unfair dismissal is set out in section 98 Employment Rights Act 1996. This sets out potentially fair reasons for dismissal, which includes redundancy.[45]If the employer shows it has a potentially fair reason for dismissal the question for the Tribunal to determine is set out in section 98(4): “…whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.”[46]If the reason for dismissal is redundancy the questions the Tribunal would usually consider when deciding if the dismissal was fair are as follows:46.1 Did the respondent adequately warn and consulted the claimant?46.2 Did the respondent adopt a reasonable selection decision, including its approach to a selection pool?46.3 Did the respondent take reasonable steps to find the claimant suitable alternative employment?46.4 Was dismissal within the range of reasonable responses? Detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996);[47]Section 47B of the Employment Rights Act 1996 says: “A worker has the right not to be subjected to any detriment by an act, or any deliberate failure to act, by his employer done on the ground that the workers made a protected disclosure.”[48]Detriment is not defined in the Employment Rights Act 1996. The caselaw on discrimination provides guidance on what is a detriment. Something will be a detriment if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. An unjustified sense of grievance cannot amount to a detriment. Shamoon v Chief Constable of the RUC [2003] IRLR 285.[49]Section 48(2) provides that on a complaint to an Employment Tribunal “… it is for the employer to show the ground on which any act, or deliberate failure to act, was done”[50]Care must be taken to establish the ‘reason why’ the employer acted as it did. The ‘reason why’ is the set of facts operating on the mind of the relevant decision-maker, it is not a ‘but for’ test. The correct test is whether 'the protected disclosure materially influences (in the sense of being more than a trivial influence on) the employer's treatment of the whistleblower’ (Fecitt v NHS Manchester [2012] IRLR 64 at [45]).[51]If an employment tribunal can find no evidence to indicate the ground on which a respondent subjected a claimant to a detriment, it does not follow that the claim succeeds by default. In Ibekwe v Sussex Partnership NHS Foundation Trust, UKEAT/0072/14/MC the EAT concluded that there were no grounds for interfering with the tribunal’s unequivocal finding that there was no evidence that an unexplained managerial failure to deal with an employee’s grievance was on the ground that the grievance contained a protected disclosure. Time Limits[52]Section 48 ERA sets out the time limits in respect of claims under section 47B. Section 48 ERA provides, so far as is relevant: “(3) An employment tribunal shall not consider a complaint under this Section unless it is presented –(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the Tribunal consider reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. (4) For the purposes of subsection (3) – (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and in the absence of evidence establishing the contrary, an employer … shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonable have been expected to do the failed act if it was to be done.”[53]If complaints are brought after the end of the three-month statutory period, then the Tribunal only has jurisdiction if it was not reasonably practicable to bring proceedings within the statutory period, and they were brought within a reasonable period thereafter.
Discussion and conclusions
[54]It was apparent from the documents provided that the claimants had repeatedly failed to comply with the Tribunal’s orders that they provide further information about aspects of their claim. This was not a one-off occurrence. The order to provide further information about what they said were protected disclosures and what they said were detriments had been made at the first preliminary hearing that took place on 23 July 2023. The same order, either in identical or substantially similar terms, was made on the following occasions:54.1 at a preliminary hearing on 23 October 2023;54.2 by written order dated 9 January 2024;54.3 at a preliminary hearing on 16 February 2024;54.4 at a preliminary hearing on 9 May 2024; and54.5 at a preliminary hearing on 12 July 2024.[55]The order to provide further information had been made so that the claimants’ claims could be fully understood. The information required was straightforward and should all be matters of fact within the claimants’ own knowledge. What they needed to clearly identify was the following:55.1 what they said, to whom and when which they said was a protected disclosure; and55.2 what they said the respondent did, either an act or omission, in response that was detrimental to them.[56]Similar straightforward information was required in relation to the claimants’ claims for ordinary unfair dismissal, i.e. what aspects of the redundancy procedure did they say was unfair and why.[57]Despite various Judges’ attempts to obtain this further information from the claimants the nature of these aspects of their claims were still unclear at the preliminary hearing held on 12 July 2024. The purpose of that hearing was to consider whether to strike out the claimants’ claims because they did not have reasonable prospects of success. At that hearing Employment Judge Reid decided the claims were still insufficiently clear for her to follow the correct approach and take the claims at their highest. She effectively gave the claimants a ‘last chance’ to explain their claims, but with the question of whether they should be struck out on the grounds of having no reasonable prospects of success being left open.[58]The documents the claimants submitted which they said provided the necessary information failed to provide the required information. The claimants did not comply with the Tribunal orders. As a result, at this hearing the basic elements of their whistleblowing detriment claims had still not been clarified. They also had made no attempt to provide any information about why they said the redundancy dismissal procedures were unfair.[59]The threshold for striking out the claimants’ claims for non-compliance with Tribunal orders had been met. The claimants had repeatedly failed to provide basic information about their claims, despite having been directed to do so 6 times. The question for me to determine was then whether or not to strike out the claims for this reason.[60]I considered the various circumstances in the case, including those identified in Weir Valves and controls (UK) Ltd v Armitage [2004] ICR 371. In this case the relevant circumstances were as follows:60.1 The magnitude of default was serious. The claimants had first been directed to provide this information at a preliminary hearing in July 2023. Today’s hearing was over 18 months later, and the orders had been restated 5 times during that period. The order still had not been properly complied with.60.2 The lack of compliance with this order had seriously disrupted the progress of the claims. The purpose of the order was to ascertain basic information that was needed to understand the claimants’ cases. As a result of that information not being provided the cases have not progressed as the list of issues had still not been finalised. This meant no further directions had been given and the final hearing had already been postponed once.60.3 This lack of progress has had a serious impact on the possibility of a fair hearing. The events underlying the claim occurred two years ago so evidence could be compromised. This delay clearly has prejudiced the respondents who still did not know what case they need to answer so what evidence needs to be preserved.60.4 The final hearing was originally listed for January 2025 but this had to be postponed. It has been relisted in July 2025. This listing is still provisional because the issues still have not been finalised. It is not known if sufficient days have been allocated for the final hearing, as it is not possible to know what evidence needs to be heard when the claimants’ cases are still not fully clarified.60.5 Based on the claimants’ failure to comply with directions to date there would seem to be a real risk that further directions would not be complied with in a timely manner. This means that further preliminary hearings may be required and the next final hearing date may be jeopardised.60.6 This was the sixth preliminary hearing in this case. It has already required a disproportionate use of the Tribunal’s finite resources to get to this point. This affects the ability to have a fair trial in a wider sense, as identified in Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327.[61]Based on the above factors, I concluded that there were grounds to strike out the claimants’ claims for non-compliance and that it would be in accordance with the Overriding Objective to do so. However, I also considered the following:61.1 I was mindful that it was not clear if the default was the responsibility of the claimants or their representatives. The claimants had been represented until recently, though their representatives had changed over time. The documents submitted which purported to provide the information all appeared to be drafted by the claimants’ representatives. It seemed possible that it was the representatives who were responsible for the default, e.g. by failing to take proper instructions or present the further information in an adequate manner.61.2 The claimants were now representing themselves and were in attendance. Before striking out for non-compliance I had the opportunity to ask the claimants directly to provide the required information during the hearing. It was possible this may remedy the situation and enable the case to progress onwards more efficiently in the future.61.3 The final direction to provide further information was inextricably linked with the question being considered by Employment Judge Reid at the last preliminary hearing, i.e. should the claims be struck out because they had no reasonable prospects of success. Employment Judge Reid did not strike out the whistleblowing detriment and ordinary unfair dismissal claims because they remained unclear. By asking the claimants directly to provide the missing information, and give them one last chance, I ensured that I did all I could to try understand the claimants’ cases. This in turn would allow me to revisit the issue of whether the claims had no reasonable prospects of success.[62]The information I elicited from the claimants is set out above. In summary, from my discussions with the claimant I ascertained the following:62.1 The only clear possible detriment both claimants identified related to the way their grievances had been dealt with. The specific complaints remained unclear but broadly they complained about delay in the grievances being heard and the fact the grievances were not upheld. It was not disputed that the grievance outcome was provided on 5 April 2022 and 14 May 2022.62.2 The claimant suggested they had other complaints, such as rumours being started about them. They were not able to give details of these potential complaints. The information provided by the claimants was very vague and they did not provide details of any particular incidents or approximate dates. Further information would still be needed.62.3 The claimants were not able to identify any aspects of the redundancy procedure that they said was unfair. The claimants relied on their grievances. From what I understood, the claimants were unhappy with the fact that there was an overlap in the grievance process and the redundancy process, and they seemed to suggest that was deliberate. Again, the exact allegation remained unclear. They did not identify any separate procedural flaws with the separate redundancy consultation process.[63]Having heard from the claimants I reached the following conclusions:63.1 The only potential detriments that the claimants had been able to identify was delay in hearing their grievances and the respondents’ decision not to uphold the grievance. The outcomes were provided on 5 April 2022 and 14 May 2022. The deadline for starting Early Conciliation in respect of these claims would have been 4 July 2022 (second claimant) and 13 August 2022 (first claimant).63.2 These claims would be out of time. The time limit for starting claims for whistleblowing detriment is strict. The claimants would need to show that it was not reasonably practicable for them to comply with the time limits and that they had started proceedings within a reasonable additional time. The claimants did not start Early Conciliation until 3 November 2022 (first claimant) and 5 February 2023 (second claimant). The claimants have not provided any indication of why they could not submit their claims relating to the grievance earlier. The delay was almost three months (first claimant) and seven months (second claimant).63.3 I concluded the claimants claims for whistleblowing detriment about the grievance process and outcome have no reasonable prospects of success as they were submitted significantly out of time and the claimants have no reasonable prospects of persuading the Tribunal that it was not practicable to bring them in time and that they were presented within such period of time that was reasonable.63.4 The claimants indicated they may have other complaints which could be described as detriments due to having made protected disclosures. Insufficient information has been provided about these allegations, they remained vague. The claimants have had multiple opportunities to provide this information and have repeatedly failed to do so. It would not be in accordance with the Overriding Objective to allow a further opportunity. A further opportunity would affect the ability to have a fair trial, taking into account the number of hearings that have already been held, the prejudice to the respondent and the impact on other Tribunal users.63.5 By this point it was clear there was a genuine redundancy situation due to the closure of the restaurant. The claimant’s only challenge to the fairness of the dismissal relates to their contention that their grievance, so whistleblowing, was the actually the reason for dismissal. The claim for automatically unfair dismissal has already been struck out. The claimants have failed to comply with the direction that they identify what other aspect of the dismissal procedure may make the dismissal unfair. The claimants have again been unable to put forward any argument about why their dismissals may have been unfair. Due to the clear redundancy situation, that was of a type where no further selection process was required, I concluded that the ordinary unfair dismissal claim had no reasonable prospects of success.[64]For these reasons, the claimants’ remaining claims were all struck out and dismissed.
Introduction
[1]The claimants both worked at a restaurant in Barking. They were employed by different companies, the two respondent companies, so had different employers. The respondent companies are connected hence they worked within the same business.[2]The claimants brought claims against the respondent for unfair dismissal, automatic unfair dismissal contrary to section 103A Employment Rights Act 1996 and that they had been subjected to detriments having made protected disclosures.[3]Their claims for automatic unfair dismissal were struck out at a preliminary hearing on 12 July 2024 on the basis they had no reasonable prospects of success. The remaining claims for ordinary unfair dismissal and whistleblowing detriment were struck out at a preliminary hearing on 5 February 2025. There were two grounds for considering striking out the claims. The claimants had repeatedly failed to comply with directions to provide further information about these claims. Based on the limited further information that had been provided, I concluded those claims did not have reasonable prospects of success.[4]The claimants started their claims separately and the cases were later joined. The claimants were initially represented separately. Osman Solicitors represented the second claimant from the outset. They started to represent the first claimant from 9 May 2024, when the fourth preliminary hearing was held. Osman Solicitors came off the record in respect of both claimants on 9 October 2024.[5]At the third preliminary hearing, held on 16 February 2024 Employment Judge Martin made a costs order against the claimants in favour of the respondents. This was for the costs of the respondents attending the preliminary hearings on 23 October 2023 and 16 February 2024. The amount to be awarded was to be determined, once the respondents provided further information and evidence. That remains outstanding. The first and second respondents’ current application for costs[6]At the preliminary hearing held on 12 July 2024 both claimants had been ordered to provide certain additional information about their claims by 2 August 2024. The claimants failed to do this.[7]On 5 September 2024 the first and second respondents had made an application that the first and second claimants’ claims were struck out. The strike out was sought on the basis that the claimants had continued not to comply with Tribunal orders, and specifically the order to provide certain additional information about their claims.[8]The respondents also made an application for costs on the following grounds: 8.1. They said that the claimants and their representatives had acted unreasonably throughout due to the repeated failure to comply with Tribunal orders. 8.2. They said that the claims were vexatious as they had never had reasonable prospects of success. 8.3. They sought costs against the claimants on the above two grounds and a wasted costs order against Osman Solicitors based on the way they said they had conducted the proceedings.[9]The case had been listed for a further preliminary hearing on 10 October 2024. At the time the claimants were represented by Osman Solicitors. Osman Solicitors ceased acting on 9 October 2024. The same day the preliminary hearing was postponed due to lack of judicial resources.[10]The preliminary hearing was re-listed for 5 February 2025. Before that hearing the respondents reiterated their application for costs. This included an application for costs against both the claimants and an application for wasted costs against Osman Solicitors.[11]At the hearing on 5 February 2025, I struck out the claimants’ remaining claims and all claims were dismissed. There was insufficient time to also deal with the costs application at that hearing.[12]I made directions to progress the determination of the costs hearing. The parties and Osman solicitors were directed to provide written submissions by 5 March 2025.[13]This hearing was listed to consider the costs applications. The hearing was listed for 2 days to allow one day for deliberations and judgment to be given orally on the second day. The respondents asked that the judgment was given in writing, to save incurring further costs.[14]On the first day the claimants asked that they were given additional time to provide submissions. The claimants by this point had already had several opportunities to respond to the costs application. However, due to the claimants now being unrepresented and the potentially onerous nature of any costs award being made against them I allowed one further opportunity to provide written submissions and reserved judgment until after they were received.[15]The claimants were given until 4 July 2025 to provide their submissions to the Tribunal in writing. Both claimants wrote to the Tribunal, and I was able to review their submissions before completing this judgment.
The Law
[16]At the time of the respondents’ first application the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 still applied. Since then, the Employment Tribunal Procedure Rules 2024 (“the 2024 Rules) have replaced the 2013 Regulations. The wording of the relevant provisions are in effect the same, so the substance of the law has not changed. In this judgment I refer to the 2024 Rules as that is the law that is the current legal position.[17]Rule 74 of the 2024 Rules states: “(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order 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 of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.”[18]Under Rule 78 of the 2024 Rules: “(1) A wasted costs order is an order against a representative in favour of any party where that party has incurred wasted costs. (2) The Tribunal may make a wasted costs order in favour of a party, whether or not that party is represented, and may also make such an order in favour of a representative’s own client. (3) […] (4) In this rule, and in rules 79 (effect of a wasted costs order), 80 (procedure) and 82 (ability to pay), ‘representative’ means a party’s legal representative or lay representative or any employee of such representative, but it does not include a person who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit. (5) ‘Wasted costs’ means costs incurred –(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.”[19]The position within the Employment Tribunal is that an order for costs is the exception, rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA). The Tribunal can only make an order for costs in specified circumstances.[20]There are three stages to Tribunal’s decision-making process when faced with an application for a costs order. First the Tribunal must decide if one of the conditions allowing for costs to be awarded applies. It then must decide whether or not to exercise its discretion and make an order for costs. Finally, it must decide the amount of the award. (Millan v Capsticks Solicitors LLP & Others UKEAT/0093/14/RN).[21]The first stage is to decide on whether one of the relevant thresholds within Rule 76 has been met. The caselaw provides the following guidance: 21.1. Unreasonable has its ordinary meaning and is not to be interpreted as something similar to vexatious. 21.2. Vexatious and abusive means “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) 1FLR 759). 21.3. “Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims "had" no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. […]” (Radia v Jefferies International Ltd [2020] 2 WLUK 282).[22]Having decided the threshold has been met, the Tribunal must exercise its discretion in deciding whether to make an award of costs. When doing this all relevant factors and circumstances should be taken into account: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case, and in doing so to identify the conduct, what was unreasonable about it and what effects it had.” (Barnsley Metropolitan Borough Council v Yerrakalva [2012] ICR 420)[23]Whether or not a party is represented is a relevant consideration. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. The threshold tests may be the same whether a party is represented or not, but the application of those tests should take account of whether a litigant has been professionally represented or not (AQ Limited v Holden [2012] IRLR 648).[24]Under Rule 82 Employment Tribunal Procedure Rules 2024 the Tribunal “may have regard to the paying party’s….. ability to pay”.[25]If the means of a paying party in any costs award are to be taken into account, the Tribunal should set out its findings about ability to pay and say what impact this has had on the decision whether to award costs or an amount of costs. (Jilley v Birmingham & Solihull Mental Health NHS Trust UKEAT/0584/06).[26]When deciding whether to make an order for wasted costs against a representative a three-stage test is also applied. The Tribunal must decide: 26.1. whether the representative has acted improperly, unreasonably, or negligently: 26.2. if so, did the party seeking the order incur unnecessary costs as a result of that conduct; and 26.3. is it just in the circumstances to make an order that the representative pay all or any part of those costs.[27]The meaning of improper, unreasonable and negligent in this context has been considered by both the Court of Appeal and House of Lords (Ridehalgh v Horsefield 1994 3All ER 848, CA and Medcalf and ors 2002 3 All ER 721, HL). They should be understood as follows: 27.1. ‘improper’ conduct includes that which would justify a professional penalty, such as disbarment, striking off or suspension from practice; 27.2. ‘unreasonable’ is conduct that is vexatious, designed to harass rather than advance the resolution of the case; and 27.3. ‘negligent’ is used in a non-technical way and relates to a representative’s failure to act with the level of competence reasonably to be expected of ordinary members of the profession.[28]A representative will not have acted improperly, unreasonably or negligently just because their client is pursuing a hopeless case. In the case of a solicitor, they must present their client’s case as instructed even if they have advised to act otherwise. That advice will be covered by professional privilege. If privilege is not waived it will often not be possible to know whether fault lies with the client or the representative.[29]For costs to be awarded against a representative there must also be some abuse of process. It is not sufficient just that the representative has acted in a way that is improper, unreasonable or negligent. The wasted costs must in be attributable to the solicitor’s conduct so they must in some way have assisted proceedings that were an abuse of Tribunal process. Decision – findings of fact, discussion and conclusions[30]This decision should be read in conjunction with the written reasons for the Judgment I made following the hearing on 5 February 2025 at which the claimants’ remaining claims were struck out. Within that judgment is a detailed chronology of the proceedings.[31]For the purpose of determining this costs application the following is the relevant background: 31.1. The first preliminary hearing was held on 17 July 2023. At that hearing directions were given for the claimants to provide certain additional information about their whistleblowing detriment claims. That further information comprised two elements. The claimants needed to identify what they said were protected disclosures. This had two parts, what they said and to whom. The respondent had already conceded that the claimants had raised a grievance that could be a protected disclosure. All that was required was for the claimants to state whether they relied on any other communications and provide the details of what they said to whom and when. The claimants then needed to identify what they said the respective respondents did or failed to do as a consequence of the protected disclosure that was a detriment. Again, this was just a matter of stating what the respondent did or failed to do and when. 31.2. The further information sought were the basic essential elements of a whistleblowing detriment claim. This was not complex information. They were factual matters that would have been within the claimants’ own knowledge, based on their own experience of what had happened when they were employed by the respondents. 31.3. At all times the second claimant was represented by Osman Solicitors. The first claimant’s representation varied, but he was also represented by Osman Solicitors from 9 May 2024. The claimants had legal assistance to help them understand what was required and prepare the documents to send to the Tribunal and respondents setting out the further information. 31.4. The initial order directed the claimants to provide the information by 29 September 2023. The claimants did not comply with the orders. A second preliminary hearing was held on 23 October 2023. The claimants sought further time to comply with the directions. A further preliminary hearing was listed for 16 February 2024 and the claimants were given until 18 December 2023 to provide the information. In the orders sent out after the hearing Employment Judge noted that the information the claimants were required to provide was in their knowledge and at the hearing this had been acknowledged by the claimants’ representatives. 31.5. The next hearing was held on 16 February 2024. The first claimant was not represented at this point. Again, the claimants had not provided the further information and sought additional time. A further preliminary hearing was listed and an unless order made. A costs order was also made against both claimants in respect of the respondents’ wasted costs for the hearings on 23 October 2023 and 16 February 2024. 31.6. A preliminary hearing was held on 9 May 2024. By this point the claimant had submitted documents purporting to set out further information about their cases. These documents were lengthy. However, it was still not possible to clarify the claimants’ claims based on these documents. 31.7. A public preliminary hearing was held on 12 July 2024 the claimants’ automatic unfair dismissal claims were struck out as having no reasonable prospects of success. Due to the lack of clarity on the detriment claims and ordinary unfair dismissal claims Employment Judge Reid was unable to consider whether these claims should be struck out or a deposit order was made. The claimants were allowed until 2 August 2024 to provide that information. Clear directions were provided on how this was to be done. This was the same information that the claimants had initially been directed to provide by Employment Judge Crosfill in July 2023. 31.8. The claimants did not meet that deadline. Osman Solicitors requested additional time to do so on 2 August 2024 and again on 2 September 2024. Osman Solicitors said that the claimants were “still in the process of gathering the necessary information” and “accumulating the necessary documents”. Eventually Osman Solicitors wrote to the Tribunal attaching documents that purported to provide the information on 4 September 2024. 31.9. The documents provided did not set out the required information. They were relatively lengthy documents, given that what was needed was very limited in scope. There were no clear factual allegations identified. No additional information in respect of the ordinary unfair dismissal claim was provided. In respect of the whistleblowing detriment claims, I refer to paragraph 20.2 of my judgment striking out the claims: “The document was rambling and incoherent, frequently repetitive and identified nothing the claimants said the respondent had actually done, other than make them redundant” 31.10. Osman Solicitors subsequently came off the record. The claimants represented themselves at the hearing on 5 February 2025. At that hearing I was able to ask the claimants directly about their claims. They struggled to provide the information that was needed, even in response to direct questions. My observation was that neither appeared to understand fully what was required, despite having had access to legal advice on their claims from Osman Solicitors. Eventually they confirmed that they were only relying on their formal grievance as being a protected disclosure. They still sought to say the dismissal was due to the protected disclosure, even though this claim had already been struck out. Otherwise, they just identified the delay in dealing with the grievance as being a detriment. 31.11. The claims were struck out in part because of the continued noncompliance with Tribunal directions. Once the claimants provided the requested information about the detriment claims, it was apparent that they were without substance so had no reasonable prospects of success.[32]From this chronology it can be seen that the proceedings in these two claims were prolonged due to the claimants’ repeated failure to provide basic information about their whistleblowing detriment claims. The claims were started in late 2022 and early 2023. They were first ordered to provide that information at the first preliminary hearing that occurred on 17 July 2023. It took until 5 February 2025 for the claimants to provide the necessary minimum information about their claims. During that period of time there were 4 additional preliminary hearings. The Judges overseeing those hearings explained multiple times what information the claimant needed to provide and they repeatedly failed to do so.[33]This repeated failure to comply with Tribunal orders and provide basic information about the claimants’ case amounts to unreasonable conduct in the way that the proceedings have been conducted. The failure was repeated and as a result the issues in the claimants’ cases still had not been clarified over 18 months after the first preliminary hearing, despite there being an additional three preliminary hearings in the interim. A first order for wasted costs was made in February 2024, which ought to have acted as a warning about the need to ensure the further information was provided to enable the case to progress. Despite this, the claimants continued not to comply with directions.[34]I am satisfied that the manner in which the claimants’ cases have been conducted has been unreasonable. As a result, under Rule 74 I must consider making a costs order in favour of the respondents. The next step is to decide whether to exercise the Tribunal’s discretion and make such an order against the claimants.[35]In this case the respondents have also sought a wasted costs order under Rule 78 against Osman Solicitors. Before considering whether to make an order against the claimants individually, I have considered whether there are grounds to consider making a wasted costs order against Osman Solicitors. When exercising its discretion about whether to make a costs order against a party the Tribunal needs to take into account all the relevant factors and circumstances. The fact that the claimants were represented by Osman Solicitors is relevant, as is the respondents’ application for a wasted costs order. The respondents are seeking this order against the solicitors based on the same circumstances, i.e. the repeated non-compliance with Tribunal orders leading to multiple preliminary hearings and lack of progress with the case. The costs the respondents say they have incurred as a result are the same.[36]The underlying issue in this situation is trying to ascertain where responsibility lies for the continued non-compliance with Tribunal orders. There are the following points that need to be considered: 36.1. The tests applied when deciding whether to order wasted costs against a representative are different to those applied in respect of a party. I must decide if Osman Solicitors acted improperly, unreasonably or negligently. 36.2. It is the representative’s conduct that is relevant. A solicitor must act on their client’s instructions. A solicitor does not act unreasonably just because they act on their client’s instructions that are unreasonable. 36.3. Communications between a solicitor and their client will be covered by professional privilege. Therefore, it may not be possible to know where responsibility lies for the conduct of the proceedings. This can make it difficult to ascertain whether a representative is at fault.[37]In this case Osman Solicitors acted for the second claimant from the outset until they came off the record in October 2024. They acted for the first claimant from May 2024 until October 2024. Therefore, they were involved in some form for the majority of the case. They attended hearings on behalf of both claimants and entered into correspondence with the Tribunal about directions and noncompliance. Based on this correspondence and the records of the various preliminary hearings I have made the following observations: 37.1. The directions to provide further information about the claimants’ whistleblowing detriment claims were made at the first preliminary hearing in July 2023. The information that needed to be provided was clearly set out by Employment Judge Crosfill. No additional information has ever been required, the same direction has been restated in multiple ways. 37.2. At all times Osman Solicitors have represented the second claimant, until they came off the record on 9 October 2024. They represented the first claimant from May 2024 until 9 October 2024. The cases were joined at the first preliminary hearing. Osman Solicitors were always aware of the directions that were made in respect of the first claimant, even when they did not represent him. 37.3. On multiple occasions Osman Solicitors attended hearings unprepared to assist the Tribunal and provide the information that was needed to clarify the issues and progress the case. This was despite there having been multiple directions that the same further information was provided by the claimants. 37.4. Osman Solicitors frequently sought extensions of time to provide the information. The reasons given were not specific but based on general assertions of the complexity of the matter requiring more time, e.g. in August and September 2024. This was despite the information being sought being simple and within the claimants’ own knowledge. 37.5. Eventually documents were provided that purported to provide this information. These were presented in a formal legal style, and from this I have inferred they were prepared by Osman Solicitors. The substance of these documents did not comply with the Tribunal directions (see the quote in paragraph 31.9 above).[38]To date Osman Solicitors have not provided an adequate explanation for the delays in complying with the directions that the claimant provide basic information about their whistleblowing detriment claims. In their response to the costs application the only reason given for the delay is the claimants’ financial position. Osman Solicitors have suggested that the claimants lacked funds to progress matters. They have then suggested that they were acting pro bono, because they were never put in funds.[39]Throughout proceedings Osman Solicitors have put forward inconsistent explanations to the Tribunal about the basis on which they were representing the claimants. They have represented the second claimant throughout and at the first preliminary hearing but said that this was on a ‘pro bono’ basis because he was trying to raise funds for representation. This was relied on to seek an extension of time to comply with directions. This was not put forward as an explanation for seeking further extensions, e.g. in August 2024. It is only in response to this costs application that they have again asserted that they have been acting pro-bono.[40]I do not accept the assertion that the delay in compliance with instructions was due to lack of funds being provided to Osman Solicitors by the claimants. Osman Solicitors did undertake work for the claimants. They attended hearings. They also drafted documents which they said provided the further information and entered into correspondence with the Tribunal. These documents were relatively lengthy and would have taken time to produce. This is inconsistent with the explanation now given by Osman Solicitors that they could not progress matters due to lack of funds provided by the claimants.[41]I also do not accept that Osman Solicitors were acting pro bono at any point. A representative who is genuinely acting pro bono has no expectation of the client paying them, so lack of funds would not provide any explanation for delay.[42]All that Osman Solicitors needed to do to ensure the claimants complied with the directions to provide further information was have a short conversation with each one to identify two things. The first was whether they said they had made any disclosure other than the formal grievance. The second was whether they were complaining about anything else the respondents did other than dismiss them. As reiterated throughout proceedings, this was information within the claimants’ own knowledge. Osman Solicitors then needed to set this out concisely in writing. This could be a very short email. This entire process need not be time consuming. At no point do Osman Solicitors appear to have actually done this. They have provided long documents that did not actually comply with directions and repeatedly sought more time to comply.[43]Looking overall at how Osman Solicitors have handled the case, based on the documents prepared, correspondence with the Tribunal and their conduct at the various preliminary hearings I have concluded that there are the three following potential explanations for the delay: 43.1. Osman Solicitors failed to take proper instructions from the claimants that were needed to comply with the direction to provide specific further information about the whistleblowing detriment claims. 43.2. Osman Solicitors did not understand the directions and what the claimants were required to do or why because they were not familiar with the law on whistleblowing detriment claims and were acting outside their competence. 43.3. Having taken instructions, Osman Solicitors were aware that the claimants did not have a viable whistleblowing detriment claims. They presented information to the Tribunal in a way that sought to obscure this underlying position in order to artificially keep the claims alive.[44]It is not clear which of the above possibilities apply. It may be a combination, e.g. they did not take the right instructions because they did not properly understand what was required. Any of the above possibilities would be sufficient for me to consider making an order for wasted costs against Osman Solicitors, being conduct that is negligent and improper.[45]On this basis I am satisfied that Osman Solicitors’ conduct has been negligent and improper. In order to award costs I must also be satisfied that there was an abuse of process. I am satisfied that there has been an abuse of process.[46]As a result of Osman Solicitors’ repeated failure to comply with directions the case was prolonged unnecessarily. Multiple preliminary hearings were required. One costs order had already been made due to the claimants’ non-compliance. Osman Solicitors must have appreciated the seriousness of the situation. Rather than take steps to progress matters they continued to engage in the Tribunal proceedings in ways that prolonged the situation. I am satisfied there was an abuse of process.[47]The result of Osman Solicitors’ conduct is that the case has been prolonged. This has included listing of additional unnecessary hearings. The respondents will inevitably have incurred unnecessary costs as a result. I am satisfied that it is just to make an order that Osman Solicitors pay all or part of those costs.[48]Given that I have made a wasted costs order against Osman Solicitors I have decided not to make a further order for costs against the claimants. There is already one costs order against the claimants, the amount which remains to be determined. Looking at the whole picture since then, based on my conclusions above I have also concluded that further unreasonable conduct is most likely to be attributable to Osman Solicitors. Amount of costs order – outstanding costs order against the claimants[49]Employment Judge Martin made a costs order against both claimant at the preliminary hearing on 16 February 2024. This was in respect of the costs of that hearing and the preliminary hearing held on 23 October 2023. The amount remained undetermined and directions were given to the parties.[50]I have now been able to review the schedule of costs provided by the respondents and the claimants’ responses to that. The schedule of costs includes: 50.1. the sum of £350 in respect of attendance at the October 2023 preliminary hearing; and 50.2. the sum of £805 in respect of attendance at the February 2024 preliminary hearing.[51]The schedule of costs includes sums in relation to other work being undertaken up until 16 February 2024. The order made by Employment Judge Martin is only for the costs of those hearings. The total costs for attendance at both hearings is £1,155.00.[52]This sum is attendance on behalf of both respondents. The order is against both claimants. Therefore, the total should be split between the claimants and respondents as follows: 52.1. the first claimant is ordered to pay the first respondent the sum of £577.50 by way of costs; and 52.2. the second claimant is ordered to pay the second respondent the sum of £577.50 by way of costs.[53]In reaching this decision I have taken into account representations made by the claimants in respect of their ability to pay. The claimants in submissions have indicated that their financial positions are precarious. However, they provided little detailed information and no evidence. I accept that the claimants are not well off and probably have limited income. However, the sums the claimants are ordered to pay are also limited. Amount of costs order – amount to be paid by Osman Solicitors[54]The amount of the costs Osman Solicitors are ordered to pay, needs to reflect the unnecessary costs that the respondents have incurred due to Osman Solicitors conduct. Not all of the costs incurred since February 2024 will be attributable to their conduct. The unnecessary costs are those incurred due to the manner in which Osman Solicitors progressed their clients’ claims or failed to do so appropriately.[55]There were three additional preliminary hearings. These were in May 2024, July 2024 and February 2025. The May 2024 preliminary hearing was for case management. It was needed because the claimant had been given a final chance to provide further information so the issues could be clarified. This hearing would have gone ahead in any event. Therefore, the costs of this hearing cannot be attributed to Osman Solicitors’ conduct.[56]The preliminary hearings in July 2024 and February 2025 were both public preliminary hearings and part of the claimants’ claims were struck out at each one. Ultimately all claims were struck out. At least one public preliminary hearing would have been required for the Tribunal to determine the respondents’ applications for strike out. However, had Osman Solicitors properly taken instructions and provided the further information on the detriment claim in a timely manner the second would not have been required. Therefore, the costs incurred in respect of the February 2025 hearing were unnecessary.[57]The respondents provided details of all costs incurred during the case. The cost of preparing and attending the hearing on 5 February 2025 amounted to £1,500 in total. These were unnecessary costs that can be attributed to Osman Solicitors’ conduct and should be paid by Osman Solicitors to the respondents.[58]This was only a fraction of the costs incurred by the respondents after the preliminary hearing on 12 July 2024. Had Osman Solicitors provided the required further information in a timely manner the case a whole would have concluded in July 2024 and therefore the respondents would only have incurred minimal additional costs in finalising matters.[59]Not all costs incurred by the respondent after 12 July 2024 can be directly attributed to Osman Solicitors’ conduct. Some costs will have been incurred based on choices the respondents made in how they ran the case, such as the amount of correspondence sent to the Tribunal. Some additional costs were incurred due to further failures to comply with directions during that period, e.g. Osman Solicitors’ additional applications for extension of time in August and September 2024.[60]Looking at the evidence provided by the respondents’ solicitors and the documents on the Tribunal file, I have decided that Osman Solicitors should also be ordered to pay the sum of £2,000 in respect of the additional costs incurred by the respondents between July 2024 and February 2025. This is approximately half of the costs incurred in addition to those directly attributable to the costs of the final preliminary hearing.[61]In summary, Osman Solicitors are ordered to pay the sum of £3,500 in respect of the wasted costs incurred by the respondents. Osman Solicitors must pay the sum of £1,750 to each respondent.