Employment Judge QuillIn person for claimantMr M Plgerstorfer KC for respondentDate 20 October 2023
JUDGMENT
[1]The application for interim relief is refused.[2]The Claimant concedes that he was not dismissed on 2 February 2023[3]I allow the section 103A claim to continue on the basis of an allegation that the reason for the dismissal on 16 February 2023 (or, if more than one, the principal reason) was that the Claimant made a protected disclosure[4]I make no other decision on possible amendment of the claim.[5]I allow the Respondent until 23 March 2023 to file an amended response.[6]There will be a private hearing for case management purposes, held by telephone, on 24 May 2023 at 10am.
REASONS
Introduction
[1]The Claimant made an application for interim relief based on an allegation that the claimant’s dismissal was contrary to s.103A of the Employment Rights Act.[2]I gave my decision and the reasons orally, and written reasons were requested. These are they. Page 1 of 13 The hearing and the evidence[3]I had the documents in the tribunal file, and documents attached to emails which the parties had sent in (the details of which I read out to the parties).
Background
[4]In addition, I had a bundle of 230 pages (including index) from the Respondent, and a skeleton argument and authorities bundle.
The Law
[5]The Respondent had also provided some signed witness statements, though no evidence on oath was taken.[6]The hearing was conducted entirely remotely by video. For several minutes at the outset, there were some technical difficulties. However, they resolved themselves, and throughout the remainder of the hearing myself, the Claimant and the Respondent's representative could all hear each other easily.[7]During the hearing, I discussed the Claimant’s position with him and sought clarification from him, and he made his submissions in support of his application.
The law
[8]The statutory test which I must apply is the one that is set out in s.129(1) of the Employment Rights Act 1996. (1) This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.[9]In other words I must decide if it appears to me that it is likely that on determining the complaints to which the application relates the tribunal will find that the reason, (or - if more than one - the principal reason), for the dismissal is one of those specified in sub-paragraph 1(a). That includes s.103A of the Employment Rights Act 1996, which is the only such reason relevant to this application. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[10]S.103A of the Employment Rights Act refers to the fact that an employee who is dismissed shall be regarded for the purposes of Part X as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure. Page 2 of 13[11]When making a decision on an interim relief application, I do not make any formal findings of fact which are intended to be binding at any later stage of the proceedings. I am assessing - amongst other things - the likelihood of disputed facts being proved in the claimant’s favour at the final hearing. There is only limited material available to a judge making a decision on an interim relief application but my decision has to be based on whatever material is available to me.[12]When considering the likelihood of the claimant ultimately succeeding on the application the correct test to be applied is whether the claimant has a “pretty good chance” of success at the full hearing. This is the test first set out in Taplin v C Shipham Ltd [1978] ICR 1068. As numerous appellate decisions have stated (for example Ministry of Justice v Sarfraz [2011] IRLR 562 and Wollenberg Global Gaming Ventures (Leeds) Ltd [2018] 4 WLUK 14; the latter of which is as recent as 2018), the test that was set out in 1978 in Taplin remains the appropriate one. The test does not simply mean “more likely than not”; it denotes in a significantly higher degree of likelihood.[13]For the claimant to succeed in his interim relief application, it is necessary for him to show that there is a pretty good chance of succeeding on each required element of the s.103A claim. In other words that he has to show there is a pretty good chance that the final tribunal will decide that there actually was a protected disclosure, as well as showing that there is a pretty good chance that the disclosure, if any, was the principal reason for his dismissal.[14]There are three requirements that need to be satisfied and for the definition of protected disclosure in s.43A of the Employment Rights Act to be met. There needs to be a disclosure within the meaning of the Act; that disclosure has to be a qualifying disclosure; and it must be made by the worker in a manner that is set out at sections 43C through to 43H.[15]The disclosure must contain information and there must be sufficient information in the disclosure if it is to qualify under s.43B(1). (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[16]In terms of whether the employee thought that the disclosed information tended to show one of those things, the employee’s actual subjective belief must be analysed Page 3 of 13 by the tribunal both to decide what, in fact, the employee did believe and also to decide if the subjective belief was reasonable.[17]In relation to the public interest part of the criteria, as per Chesterton Global Ltd v Nurmohamed [2017] I.R.L.R. 837, the question for the tribunal is whether the worker believed - at the time he was making it - that the disclosure was in the public interest and whether that belief was reasonable. While the worker must have a genuine and reasonable belief that the disclosure of the information is in the public interest, this does not have to be the worker’s motivation for making the disclosure.[18]If the claimant is unable to show that he has a pretty good chance of showing that the disclosure was made in accordance with any of s.43C through to s.43H then interim relief should not be granted. (Although, for the purposes of this application, the Respondent did not seek to dispute this part of the requirement.)[19]It is for the Respondent to prove what its reason was for dismissing the employee. However, if the final tribunal decides that the reason or the principal reason for the claimant’s dismissal was something other than a protected disclosure then the claim for breach of s.103A fails even if the dismissal was for a reason that is different to the one put forward by the employer see for example Kuzel v Roche Products Ltd [2008] ICR 799.[20]Evidence that the employer has acted in a high handed or unreasonable or peremptory fashion or has deliberately turned a blind eye to evidence that the employee was not guilty of wrongdoing are not necessarily sufficient. Their only relevance would be if they supported an inference that the employer’s purported reason was not the true reason for the dismissal. As per the well-known case of Abernethy v Mott, Hay, Anderson, the reason for the dismissal of an employee is the set of facts known to the employer or the set of beliefs held by the employer which caused the employer to dismiss the employee. That is subject - in protected disclosure cases - to the Supreme Court decision in Royal Mail Group Ltd v Jhuti [2019] UKSC 55; where the real reason for the dismissal is hidden from the decision maker behind an invented reason, it is the tribunal’s duty to look behind the invented reason. If an investigator or senior manager wants to get rid of the employee and they trick or deceive the dismissing officer into deciding that the employee had committed misconduct, then the reason which the investigator or the senior manager had for wanting to get rid of the employee can potentially be attributed to the employer as the dismissal reason for s.103A.[21]Barley and Others v Amey Roadstone Corporation Ltd EAT 472/76 is authority for proposition that a claim which includes a claim for interim relief can be amended before a decision on the interim relief application is made, and even where the application to amend is after the 7 day deadline for presentation of the claim imposed by (what is now) section 128 of the Employment Rights Act 1996.[22]Section 128(2) reads: (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). Page 4 of 13[23]Thus the section does not prohibit an interim relief application which is made prior to the effective date of termination.[24]When a judge has to consider a request for an amendment, whether made by a claimant or a respondent, it is a matter to which judicial discretion applies. The judge must take into account all relevant factors and ignore all irrelevant factors.[25]The ultimate test that the judge must perform is to decide whether the balance of injustice and hardship is in favour of allowing the amendment or of refusing it. Allowing an amendment for a claimant will almost certainly have at least some degree of injustice and hardship to the respondent. Whereas refusing to allow an amendment to the claim is almost certainly going to have some degree of injustice and hardship to the claimant.[26]So looking at all the relevant facts and circumstances is necessary before weighing up the relative injustice and hardship and making the appropriate decision.[27]Selkent Bus Company Ltd v Moore EAT/151/96 set out some of the matters which a judge should take into account. As was emphasised in Vaughan v Modality UKEAT/0147/20/BA, Selkent must always be considered, but Selkent did not purport to set down a mere checklist that would supply the judge with the outcome, and nor did it contain an exhaustive list of the factors that might be relevant.[28]As per Selkent, it is always important for the judge to consider the nature of the amendment application, time limit issues and the manner of the application and the timing and manner of the application itself. However, it is important to bear in mind that doing so is merely part of the overall process. Furthermore, the relative importance of those factors to the overall decision will vary depending on the actual circumstances The parties’ submissions and my analysis of the alleged disclosures[29]In this case, the Claimant presented a claim on 8 February 2023.[30]This followed Early Conciliation Certificate issued on 7 February 2023.[31]The claim sought interim relief, citing the appropriate legislation in Box 8.1 and assertion that there was an unfair dismissal contrary to 103A. The dismissal date was alleged to be 2 February 2023.[32]Pausing there, it was clear from the comments made to me orally today, and the documents supplied, that – for the assertion of dismissal by the Respondent on 2 February 2023 - the Claimant was relying on one word in a letter emailed to him on that date, which the Respondent said was a typo. The letter as a whole stated he was being given a final written warning and should report the following day for work. Further, in email exchanges the same day, the Respondent told the Claimant it was a typo and sent him a revised letter with that word removed, Page 5 of 13 changing the time frame stated for appeal from “within five working days of receiving this notice of dismissal” to “within five working days of receiving this notice of the outcome”.[33]The Claimant mentioned in correspondence to the Respondent (both before and after 2 February 2023) that it construed some of their treatment of him as being (amongst other things) attempts to make him resign. He told me that he did not resign.[34]Going back to the procedure, the original claim form was accepted and a hearing for interim relief ordered.[35]In the meantime, the Claimant had submitted further documents. The tribunal file does not confirm the date, but I have no reason to doubt the Claimant’s comments that it was done on 9 February. These documents were another claim form (ET1) with more information, as well as several attachments. In totality, the 9 February documents referred to more alleged protected disclosures than the 8 February claim form (the one that had been accepted); though there might be room for debate about whether the 9 February items alleged that the detriments and dismissal were because of those other alleged protected disclosures.[36]A notice of hearing dated 15 February 2023 was sent to parties.[37]It was the Respondent’s case throughout this hearing that, at the time notice of hearing was sent, the Claimant was still employed. During the hearing today, the Respondent submitted that the Claimant was dismissed, but not until 16 February 2023. Further, its case was that the dismissal decision was taken by Ms Parjapati. Group Marketing Manager, and for the reasons stated in her letter.[38]So not – according to the Respondent - a dismissal by Darren Cargill, Supply Chain Manager, who was the author of the 2 February letter.[39]During the hearing today, the Claimant conceded that he had not been dismissed on 2 February, and sought permission to amend his claim to rely instead on a dismissal by the letter of 16 February. That was 7 days ago.[40]The Respondent asserts that the dismissal was for unauthorised absence. The dismissal letter referred to, and took account of, the final written warning. The final written warning stated that the Claimant had been on unauthorised absence since 12 January and his pay had stopped since then. It instructed him to report for work the following day 3 February, which the Claimant had not done. [On the Claimant’s case, his pay had stopped with effect from 3 January, rather than 12 January.][41]In the contemporaneous correspondence, the Claimant asserted that he regarded the 2 February letter as a termination letter. He said that – amongst other occasions – in response to the letter inviting him to the disciplinary hearing on 13 Page 6 of 13 February (which, on the Respondent’s case, took place in his absence, and led to the 16 February 2023 dismissal).[42]In the hearing today, the Claimant argues that the dismissal is because of protected disclosure. Part of that argument is that he says that even if his absence was the reason for the dismissal (which he does not necessarily concede), the reasons for his absence include(a) that the Respondent has not addressed the issues that he has raised and(b) the workplace is not safe, partly because of failure to address the issues that he has raised.[43]In today’s hearing, the Claimant has referred to four alleged protected disclosures, which he has labelled(a) to (d). It seems to me that(b) to (d) are clearly set out in the claim form, but (a) less so. For today’s purposes, I have proceeded on the assumption that no amendment application for item (a) is required, and I have heard submissions about it in any event.a. On 15/08/2022 a conversation with Jaspal Roopra, in which the Claimant alleges he pointed out that the Respondent was storing unlocked waste barrels, containing hazardous materials including waste from the plasma machines, in an unsheltered, outdoors location. He claims to have asserted it was a Health and Safety Risk and to have pointed out the hazard warnings on the containers.b. On 17/08/2022, he contacted Catherine O’Connor by email and told her he wished to be considered a whistle-blower due to the Respondent exposing the workforce as well as the local population and environment to harmful substances. This included the alleged dumping of plasma machine waste (believed to carry Chromium IV) in and around the embankment of the River Nene as well as the perimeter of the Respondent’s premises. He says he believed this was Environmental Damage and a Health and Safety Risk.c. On 30/08/2022, email to Nick Greenway stating that Catherine O’Connor had falsified a document in the Claimant’s name during the minutes from their meeting held 23/08/2022. (He referred to Miscarriage of Justice)d. On 03/10/2022, email to Bruce Wood stating that Nick Greenway had withheld test results pertaining to the protected disclosures as well as details of log entries concerning the date of exposure to the hazardous substances, which also formed part of the Claimant’s grievance. He says he also believed the Respondent had disregarded the integrity of their test results by using data from locations not relevant to the protected disclosure, and not taking samples from the areas concerned, and believed this to be both a Cover Up and Failure to Comply with a Legal Obligation.[44]Three of the four alleged protected disclosures are said to be in writing. Of those three, I only have two, and so will deal with those first.[45]Disclosure Item b was sent 17 August 2022 14:47. The Claimant has a pretty good chance of demonstrating that it was a qualifying disclosure under paragraphs Page 7 of 13 43B(1)(b) and/or (d) and/or (e). Even though some of the bullet points might be too general to qualify in their own right (ie they simply state that the Respondent is breaching an obligation, as opposed to mentioning any factual assertions of what the Respondent has done that breaches the obligation in question), However, some of the comments made do contain sufficient specific information. For example:a. The final bullet point reads: “Failure to contain substances known to contain carcinogens regulated under COSHH regulations within the business premesis, likely causing pollution to environment in the surrounding area to the company. Visible pollution found in small particle outside business premesis within close proximity to a major water body (river Nene)”b. And, towards the end of the email, there is a passage which reads: “On Friday 5/08/2022 during working on the plasma lining equipment I was exposed to large quantities of the said carcinogens covered above, the substance covering my clothing, skin in various areas and face. During working underneath an area of the equipment which is not regularly serviced dust was disturbed. During the afternoon and following evening I developed an extremely sore skin, nose and throat, which I believe lead to a severe case of acute sinusitis”[46]Disclosure item d was an email sent 3 October 2022 at 02:23. The email alleges “covering tracks and trying to avoid liability” in relation to the specific matters the Claimant has raised. Although less clear cut than item b, the Claimant has a pretty good chance of showing that this is specific enough as tending to show that the disclosure qualifies under Section 43B(1)(f).[47]It is harder to make a decision re Disclosure item c as have not seen the email in question. In this interim relief hearing, the Claimant alleges that he has said, in email on 30 August to Mr Greenway, that Ms OConnor deliberately sought to cover up the fact that he (the claimant) was not wearing a mask on a particular occasion by falsifying a document to say that he had been. This is a matter he has referred to elsewhere (in general terms); for example, the email to Mr Greenway on 5 September 2022 at 01:36. The Claimant has a pretty good chance of showing that the contents of the written disclosure, as described to me orally, were specific enough as tending to show that the disclosure qualifies under Section 43B(1)(f).[48]For Disclosure item a, there is a pretty good chance of the Claimant being able to persuade the Tribunal that he did inform Mr Joopra on 15 August, of issues which were said to be breaches of legal obligation, and/or endangering health or safety, and/or risked likely damage the environment. Amongst other things, he suggests that he pointed out – orally and by gesture – that there were dangerous chemicals which were not properly being stored, and risked becoming airborne and/or polluting the river. He claims to have pointed out that they were potentially carcinogenic. Although the alleged disclosure(s) were oral, and it may come down to one person’s word against another if there is a dispute over a sufficiently relevant aspect of the conversation, the Claimant sent his email of 17 August (item b) two days later. The Claimant has a pretty good chance of showing that the contents of what he communicated to Mr Joopra were as he has alleged, and that there was Page 8 of 13 sufficient information to be a qualifying disclosure under paragraphs 43B(1)(b) and/or (d) and/or (e).[49]The Claimant has a pretty good chance of showing that these were communications which he believed did tend to show breaches of legal obligations, and/or that health or safety was endangered and/or that the environment was likely to be damaged and, in some cases (items c and D) that relevant information was being concealed, or was likely to be concealed.[50]The Claimant has a pretty good chance of showing that these were disclosures which he believed were in the public interest and that such a belief was reasonable.[51]I do not, of course, make any binding decisions today that these actually were (or were not) protected disclosures. However, overall, the Claimant has a pretty good chance of showing that one, some or all of these four items were protected disclosures. Item b seems to be the strongest. Since all four are interconnected (“a” being raising matters orally; “b” being raising a grievance which referred back to “a”; “c” and “d” being complaints about things done or not done during the grievance process arising from “a” / “b”) it may not matter if he does not succeed on all four items, so long as he succeeds on at least one. Amendment[52]The timing of the proposed amendment is that it was made shortly before 1pm in the hearing. After a preliminary discussion at 10am, then my pre-reading, the submissions had got underway at 11.15am. The Claimant had gone first, and then Mr Pilgerstorfer KC (who had also provided a written skeleton, which the Claimant had received, and which I had read) made his submissions on the Respondent’s behalf. The Claimant then responded. During his initial submissions, the Claimant had been adamant that the letter of 2 February 2023 was a dismissal (and that he was neither relying on any other communication from the Respondent as being a dismissal, nor claiming to have resigned). It was in his response to the Respondent’s submissions that he made clear that he would like to concede that he had not been dismissed on 2 February (or any other date prior to 16 February 2023) and would instead like to make an application to amend, to allege that the dismissal was indeed on 16 February 2023 (as the Respondent had asserted) and that this dismissal was unfair because of section 103A of the Employment Rights Act 1996. He also wished to amend his interim relief application on the same basis.[53]We broke for lunch, and I heard the Respondent’s objections at 2pm.[54]I had made clear at 10am that the Claimant’s 9 February documents did not (at present) form part of the claim and that the Claimant would have to make an application to amend if he wanted those added. There was no such application from the Claimant, and (therefore) no response to such an application from the Respondent. Page 9 of 13[55]Thus the application was made orally. However, I was satisfied that it was simple enough that it could be dealt with on that basis and a written application was not required. If granted permission to amend, I would not be giving carte blanche to the Claimant to submit a written amendment at a later date; I would simply be converting the section 103A claim to be that(i) the event which terminated his employment was the letter of 16 February 2023 from the Respondent, signed by Ms Prajapati (the Respondent’s bundle pages 221 to 223);(ii) the effective date of termination was therefore 16 February 2023 (or later) and not before;(iii) that dismissal (as opposed to the one previously alleged to have occurred on 2 February 2023) was by reason of the protected disclosures mentioned above.[56]The timing of the application was such that it caused significant disadvantage to the Respondent in relation to the interim relief hearing because(i) a different person alleged to be the decision-maker and(ii) the events of 3 February to 16 February would potentially be relevant to the claim and the Respondent’s defence. By making the application so late (in the sense that it was just before I would have otherwise started deliberating on the interim relief application), the Respondent had little, if any, opportunity to take detailed instructions. (Just the lunch break). The disadvantage caused by Ms Prajapati rather than Mr Cargill being the decision-maker has to analysed taking into account that that was the Respondent’s case anyway, regardless of the Claimant’s application to amend. However, had the Claimant made his application earlier, then there would have been no need for the Respondent to focus on why sections 111(2)(a) and 111(3) of the Employment Rights Act 1996 should lead to the conclusion that his claim did not have a pretty good chance of success, and they could, instead, have spent more time on addressing why (in the Respondent’s opinion) the interim relief application should be dismissed based on the events of 3 February to 16 February and the contents of the letter [which (as a result of the Claimant’s late concession) was the dismissal letter], and the 13 February hearing which is alleged to have preceded that letter.[57]The timing of the application to amend was such that it would not cause significant disadvantage to the Respondent in terms of the litigation as a whole. The detriment complaints were(a) not affected by the application and(b) not relevant to the interim relief hearing. A detriment claim is mentioned in the claim form and (subject to any future case management decisions which may need to address whether such a claim is actually described in sufficient detail to go forward) would still survive today’s hearing in any event, given that the claim form was presented with an appropriate Early Conciliation Certificate number included. Further, even if, as a result of the Claimant’s concession that he had not been dismissed (or given notice) at the time the claim form was presented, the unfair dismissal claim had been struck out entirely by me today (as opposed to my simply making a decision on interim relief), the Claimant would have the opportunity to seek to present a new unfair dismissal claim by way of presenting a new claim form. He would also have been in time (provided he did it today, 23 February 2023) to make a fresh application for interim relief. Thus, in terms of the future progress of the litigation after today, granting the amendment application was not likely to mean that extra documents or extra witnesses would be required for the final hearing (at least on the assumption that refusing the amendment application would simply Page 10 of 13 lead to the Claimant’s presenting a new claim form, which was an option available to him according to the Respondent’s objections to the amendment application).[58]Overall, I decided that the balance of injustice and hardship was in favour of granting the amendment to the existing claim and dealing with the interim relief application today. It would not be beneficial to either side, or in accordance with the over-riding objective, for the Claimant to simply present a new claim form, and new interim relief application, later today, and have a further hearing in due course. Interim Relief Decision[59]The Claimant does not have a pretty good chance of showing that his disclosures were the reason for his dismissal.[60]At the final hearing, there will likely be – broadly speaking - two competing theoriesa. The Respondent’s case will be that the dismissal reason was his absence and/or the fact that his absence was unauthorised and/or that the Claimant had refused, and was continuing to refuse, to attend workb. The Claimant’s case will be that either Ms Prajapati dismissed him because she was personally motivated to exit him from the company because of the protected disclosures. AND/OR the Claimant’s case can be that another employee either tricked Ms Prajapati into dismissing the Claimant (by deceiving her into thinking that the true facts were different to what they actually were) or else instructed her to dismiss the Claimant, and in either case, that that other person (presumably a senior employee, or group of senior employees) did so because of the protected disclosures.[61]The Claimant has mentioned the theory that if he was dismissed because of his absence, then he will be able to persuade the tribunal that his absence was justifiable because of the concerns he had raised (and/or that the workplace was not safe). However, that is not a theory which points to a pretty good chance of a claim under s103A succeeding.[62]It is not impossible that the Claimant will succeed at a final hearing. However, the test for me today is not that his application fails only if he has little reasonable prospects. Nor is the test that the application succeeds if he has at least 51% chance of success at the final hearing; the bar is much higher than that.[63]There is nothing inherently implausible or suspicious about dismissing an employee who has repeatedly refused to attend work. There is not information before me that would help me to decide that, had the Claimant continued to attend work, he would have been dismissed anyway (for some other purported reason).[64]There is, however, contemporaneous documentation which, on its face, gave the Claimant warning about the possible consequences of failing to attend work. On the Claimant’s own case, the Respondent had ceased paying him, and he was Page 11 of 13 aware that – whether he agreed or not – the Respondent was treating the absence as being unauthorised and misconduct.[65]The Claimant mentioned orally that he had communicated with HSE and the Environment Agency. Such communications are not alleged to be protected disclosures in the 8 February 2023 claim form (and indeed, they are not mentioned at all in that document). However, the Claimant’s position is that the Respondent is fully aware that he has done so, and that is a subject which has been discussed between him and the Respondent, including on 2 February 2023. Even taking account of the implication that the Claimant’s case will be that the Respondent had become motivated (or more highly motivated) to dismiss the Claimant because of alleged disclosures “a” and/or “b” and/or “c” and/or “d” once it discovered that the Claimant had also contacted outside agencies (about the same subject matter), the Claimant has not persuaded me that there is a pretty good chance of the Respondent’s purported dismissal reason being rejected by the tribunal which hears the case.[66]The test under section 103A is not whether the employer acted reasonably; in other words, the test is not that set out in section 98 for dismissals where the employee had two years service. Furthermore, the test under section 103A is not whether any of the other so-called “automatic unfair dismissal” sections in Part X might be applicable. The test is specifically whether or not the dismissal reason was that the Claimant had made one or more protected disclosures.[67]My judgment is that the Claimant does not have a pretty good chance of being successful in that argument at the final hearing, and the interim relief application fails. Case Management[68]Having given my reasons, and having made clear that I was making no decision one way or the other on whether the Claimant had permission for the claim to be amended so that the Claimant’s documents sent to the Tribunal on 9 February (or any of them) should be treated as part of the claim, I asked the Claimant if he intended to make an application to amend his claim based on those documents. He said that he did not.[69]On that basis, I informed the parties that the claim as it stands is therefore that contained in the 8 February claim form “ET1”, which was a standalone document, which had no accompanying documents when it was presented. That form can be identified because it has “date received: 08/02/2023” in top right corner, and has paragraphs numbered 1 to 12 in Box 8.2, and items b, c, d listed in Box 15, with Box 15 being a single page which ends “… I believed this to be both a Cover Up and Failure to Comply with a Legal Obligation. Please be aware I require additional room to provide this info.” Page 12 of 13[70]So the other ET1 form (which has “date received” blank, paragraphs 1 to 15 in Box 8.2, with that paragraph numbering continuing over 3 pages of Box 15, up to paragraph 34) is not part of the claim, and nor are the other items, such as those described as “Particulars of Claim”, “Incident History” (3 pages of bullet points) or the spreadsheet referring to income.[71]The only amendment to the 8 February claim form is that the claim now proceeds as a s103A claim relying on dismissal date 16 February 2023. The Respondent has permission to file an amended response by 22 March 2023 to deal with the clarified and amended claim. (The Respondent’s existing document had assumed that all of the documents forwarded to it formed part of the claim.)[72]There will be a case management hearing on 24 May 2023 (at 10am by telephone) which will make appropriate orders for the conduct of the litigation, and identifying the details of the detriment claim which is mentioned in the claim form, but which is not necessarily clearly particularised.[1]The Claimant makes complaints of automatic unfair dismissal contrary to section 103A of the Employment Rights Act 1996 ("ERA"), unauthorised deductions from wages and of unpaid holiday pay.[2]The Claimant previously confirmed that he does not pursue a detriment complaint contrary to section 47B of the ERA.[3]The purpose of the preliminary hearing was to determine whether or not the Tribunal has jurisdiction in light of the fact that the claim was presented on 8 February 2023 and the Claimant was dismissed on 16 February 2023. Background[4]The Claimant was employed by the Respondent as a machine tool maintenance technician from 7 March 2022 until his summary dismissal on 16 February 2023.[5]The Claimant asserts that he made protected disclosures on 15 August, 17 August, 30 August and 3 October 2022. Whether each of the alleged communications occurred and are protected disclosures remain live issues.[6]In August 2022, there was an investigation into Claimant’s grievance and an outcome decision made on 30 August 2022. The Claimant appealed and an appeal outcome decision was made on 14 November 2022. The Respondent concluded that there was no serious risk or danger to life or health. At the Claimant’s request, the Health and Safety Executive (“HSE”), also inspected the premises on 21 December 2022. The HSE notified its findings on 10 January 2023 (revised on 13 January 2023). The HSE did not close the workplace.[7]The Claimant did not return to work following the grievance appeal outcome. The claimant’s pay was stopped on the basis that the Claimant’s absence was unauthorised. There is a dispute as to the date on which the pay stopped. The Claimant asserts that this was the 3 January 2023 whereas the Respondent asserts that it was 12 January 2023.[8]A disciplinary hearing took place on 25 January 2023 and an outcome letter was sent on 2 February 2023. The outcome was to impose a final written warning. The Claimant was required to return to work on 3 February 2023. The Claimant initially stated that he was dismissed on the 2 February 2023, but has now accepted he was not dismissed on that date.[9]When the Claimant did not return to work, he was invited to a further disciplinary hearing which was held on 13 February 2023. He did not attend. On 16 February 2023, the outcome (summary dismissal) was communicated to him by letter.[10]In a claim presented to the Tribunal on 8 February 2023, the Claimant asserted that his dismissal was automatically unfair caused by him having made various protected disclosures relating to health and safety. In his ET1, he asserted that the effective date of termination (“EDT”) was 2 February 2023. The claim also contains a claim for alleged unpaid wages and holiday pay. The claim form was accepted as valid.[11]The Claimant submitted a further claim form and other documents to the Tribunal on the 9 February 2023. Employment Judge Quill noted the following about that second claim form at paragraph 35 of his reasons These documents were another claim form (ET1) with more information, as well as several attachments. In totality, the 9 February documents referred to more alleged protected disclosures than the 8 February claim form (the one that had been accepted); though there might be room for debate about whether the 9 February items alleged that the detriments and dismissal were because of those other alleged protected disclosures.[12]The Claimant made an application for interim relief, which EJ Quill rejected at a hearing on 23 February 2023. During that hearing, the Claimant accepted that his EDT was in fact 16 February 2023. He made an application to amend his claim which was granted.[13]This was followed by written Judgment and Reasons dated the 24 February 2023. In respect of the amendment, EJ Quill’s Judgment was: 3. I allow the section 103A claim to continue on the basis of an allegation that the reason for the dismissal on 16 February 2023 (or, if more than one, the principal reason) was that the Claimant made a protected disclosure. I make no other decision on possible amendment of the claim. 4. I make no other decision on possible amendment of the claim.[14]In his Reasons, EJ Quill noted, at paragraph 28, the factors to be taken in to account when deciding an application to amend, including time limit issues, as per Selkent Bus Company Ltd v Moore EAT/151/96[15]EJ Quill recorded the nature of the amendment dealt with as follows: 52. It was in his response to the Respondent’s submissions that he made clear that he would like to concede that he had not been dismissed on 2 February (or any other date prior to 16 February 2023) and would instead like to make an application to amend, to allege that the dismissal was indeed on 16 February 2023 (as the Respondent had asserted) and that this dismissal was unfair because of section 103A of the Employment Rights Act 1996. […] 54. I had made clear at 10am that the Claimant’s 9 February documents did not (at present) form part of the claim and that the Claimant would have to make an application to amend if he wanted those added. There was no such application from the Claimant, and (therefore) no response to such an application from the Respondent. 55. […] If granted permission to amend, I would not be giving carte blanche to the Claimant to submit a written amendment at a later date; I would simply be converting the section 103A claim to be that(i) the event which terminated his employment was the letter of 16 February 2023 from the Respondent, signed by Ms Prajapati (the Respondent’s bundle pages 221 to 223);(ii) the effective date of termination was therefore 16 February 2023 (or later) and not before;(iii) that dismissal (as opposed to the one previously alleged to have occurred on 2 February 2023) was by reason of the protected disclosures mentioned above. […] 56. […] By making the application so late (in the sense that it was just before I would have otherwise started deliberating on the interim relief application), the Respondent had little, if any, opportunity to take detailed instructions. (Just the lunch break). The disadvantage caused by Ms Prajapati rather than Mr Cargill being the decision-maker has to analysed taking into account that that was the Respondent’s case anyway, regardless of the Claimant’s application to amend. However, had the Claimant made his application earlier, then there would have been no need for the Respondent to focus on why sections 111(2)(a) and 111(3) of the Employment Rights Act 1996 should lead to the conclusion that his claim did not have a pretty good chance of success, and they could, instead, have spent more time on addressing why (in the Respondent’s opinion) the interim relief application should be dismissed based on the events of 3 February to 16 February and the contents of the letter [which (as a result of the Claimant’s late concession) was the dismissal letter], and the 13 February hearing which is alleged to have preceded that letter. […] 58. Overall, I decided that the balance of injustice and hardship was in favour of granting the amendment to the existing claim and dealing with the interim relief application today. It would not be beneficial to either side, or in accordance with the over-riding objective, for the Claimant to simply present a new claim form, and new interim relief application, later today, and have a further hearing in due course. […] 71. The only amendment to the 8 February claim form is that the claim now proceeds as a s103A claim relying on dismissal date 16 February 2023.[16]EJ Quill refused the Claimant’s application for reconsideration of his Judgment relating to the interim relief application under cover of a letter sent to the parties on 3 April 2023.[17]There was a case management hearing before Employment Judge Michell on the 24 May 2023. At that hearing Judge Michell directed that a preliminary hearing be listed “to determine whether or not the tribunal has jurisdiction to hear the claimant’s complaint of automatically unfair dismissal (s.103A Employment Rights Act 1996) in the light of the fact that his claim was presented on 8 February 2023 and his dismissal was on 16 February 2023”. There is no reference to the equivalent jurisdictional issues relating to the holiday pay and unauthorised deductions from wages complaints. Issues to be decided at the Preliminary Hearing[18]Mr Korn stated that given what is said in Judge Michell’s case management orders he had only prepared to deal with the jurisdictional issue relating to the automatically unfair dismissal claim. However, he confirmed that the Claimant was content for a decision to be made regarding the application of statute in respect of the jurisdictional issue relating to the holiday pay and unauthorised deductions from wages complaints. However, he was not in a position to proceed at the hearing in respect of the dates from which specific pay is said to be owed as he did not have instructions in this respect.[19]Given what is recorded in the case management orders, it would not have been fair to expect the Claimant to deal with specific aspects of the holiday pay and unauthorised deductions from wages complaints. The hearing therefore proceeded on the basis that the Tribunal would decide, in principle only, whether or not the Tribunal has jurisdiction to deal with the holiday pay and unauthorised deductions from wages complaints.[20]Consequently, the issues for the Tribunal to decide are as follows: Automatic unfair dismissal – s103A ERA i. Was the Claimant’s claim, presented on 8 February 2023, presented in accordance with s111(2)(a) ERA? Arrears of Pay – unauthorised deductions from wages ii. The claim having been presented on 8 February 2023, what (if any) part of this claim is presented in accordance with s23(2)(a) ERA? Holiday Pay -The Working Time Regulations 1998 iii. The claim having been presented on 8 February 2023, what (if any) part of this claim is presented in accordance with regulation 30(2) The Working Time Regulations 1998 WTR? The Relevant Law Automatic unfair dismissal – s103A ERA[21]Section 111(2) to (3) ERA provides: (2) Subject to the following provisions of this section, an employment Tribunal shall not consider a complaint under this section unless it is presented to the Tribunal –(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A) Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a). (3) Where a dismissal is with notice, an employment Tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination. Unauthorised deductions from Wages - section 13 ERA[22]Section 23(2)(a) ERA provides: (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b)in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a)a series of deductions or payments, or (b)a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. Holiday pay - The Working Time Regulations 1998 (“WTR”)[23]Regulation 14 provides: Compensation related to entitlement to leave 14.-(1) This regulation applies where— (a)a worker’s employment is terminated during the course of his leave year, and (b)on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13(1) differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).[24]Regulation 30 provides: 30.(1) A worker may present a complaint to an employment tribunal that his employer[…] (b)has failed to pay him the whole or any part of any amount due to him under regulation 14(2) or 16(1). (2) An employment tribunal shall not consider a complaint under this regulation unless it is presented(a)before the end of the period of three months […] beginning with the date on which it is alleged that […] the payment should have been made; (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three or, as the case may be, six months. The parties’ submissions Claimant[25]The Claimant submits that his claim was amended at the interim relief hearing on 24 February 2023. At that hearing, the Claimant acknowledged that he had not in fact been dismissed on 2 February but on 16 February and accordingly applied to amend his claim.[26]EJ Quill allowed the Claim to proceed on the basis of an allegation that the reason for the dismissal on 16 February 2023 (or, if more than one, the principal reason) was that the Claimant had made a protected disclosure [paragraph 41 to 53 of Reasons]. EJ Quill directed himself on the issue of amendment at paragraph 25 of his Reasons and considered the application of that Direction at paragraphs 55 to 57. He granted the application for the reasons set out in paragraph 58 of the Judgment concluding that ‘it would not be beneficial for the Claimant to simply present a new Claim form’ for the reasons set out in that paragraph.[27]It is submitted by the Claimant that he had presented a new claim, the jurisdictional point made by the Respondent would not arise. The Claimant, as a litigant in person, should therefore not be prejudiced by the course of action followed by the Employment Judge and so the claim should be treated as having been re-presented on that date.[28]In the alternative, the Claimant submits that the substantive amendment took effect on that date and therefore the Claim was presented within 3 months of the EDT as required by section 111(2)(a). In support of this submission, the Claimant relies on the EAT’s decision in Galilee v Commissioner of Police of the Metropolis [2018] ICR 634 and the reference to that case in Harvey on Industrial Relations and Employment Law [Volume 4 paragraph at 312.05] to the effect that where a new claim is permitted by way of amendment, it takes effect from the date on which permission to amend was given and does not ‘relate back’ to the date when the original claim was presented.[29]The Claimant acknowledges that the cause of action, namely a complaint under Section 103A ERA, was the same but the claim itself was 'new’ in the fundamental sense that in the original claim the Claimant had wrongly asserted that his dismissal took place on 2 February whereas in the amended claim he was given permission to amend his claim to the actual date of dismissal namely 16 February and it is the reason for dismissal asserted by the Respondent at that date which will be relevant to determine the merits of the section 103A claim.[30]The Claimant therefore submits that the Tribunal does have jurisdiction to determine the Claim. Respondent[31]The Respondent submits that the Tribunal only has jurisdiction to hear and determine the unfair dismissal complaint if that jurisdiction is granted to it by section 111 ERA. Under section 111(2)(a) ERA, a Tribunal “shall not consider a complaint” of unfair dismissal “unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination”. The claim was presented on 8 February 2023, whilst the Claimant was still employed, before he was dismissed, and therefore before the effective date of termination. The claim was therefore premature. A premature claim presented prior to the EDT is not presented in accordance with s111(2)(a) and accordingly the Tribunal has no jurisdiction to consider it.[32]It is submitted that an extension of time does not avail the Claimant because he presented before the first date when presentation was permitted.[33]Further, as per Commissioners for HM Revenue & Customers v Serra Garau [2017] ICR 1121, a limitation clock that has never started is not stopped by reference to early conciliation conducted prior to it running [paragraph 30].[34]Section 111(3) ERA provides that where a dismissal is “with notice”, a claimant may present his/her claim before the EDT provided it is after the giving of notice. The Claimant was summarily dismissed on the 16 February so section111(3) cannot apply.[35]The Respondent relies upon Rai v Somerfield Stores Ltd [2004] IRLR 124. The EAT considered the case of an employer who wrote to an employee to say that if he failed to turn up for work on 9 April, his employment would be treated as having ended. The employee presented a claim to the Tribunal on 6 April 2023, after that communication but before 9 April, on which day he did not attend for work and was dismissed by the employer. The EAT rejected the submission that the employer’s original letter requiring the employee to attend on 9 April was “notice” of termination. It said at paragraph 30: In our judgment, this was not a dismissal on notice falling within s.111(3). We take the view that, whether described as an ultimatum or a conditional notice or not, and we do not regard either expression as necessarily inappropriate, a notice which enables the employer to terminate the contract of employment only if the employee does or does not perform a particular act specified in the notice, which only he, the employee, can choose whether or not to perform, is not an unequivocal notice to terminate the employment.[36]The Respondent submits that the position here is even clearer than in Rai because no notice was given by the Respondent to the Claimant to say that his employment would be treated as at an end if he failed to return to work on a specified date. The 2 February 2023 outcome letter imposed a final written warning, and merely indicated that C was expected back to work on 3 February 2023 [110]. The invitation to a further disciplinary hearing on 9 February 2023 also did not pre-empt the decision because the Claimant was told “The outcome from the hearing may be any sanction up to and including summary dismissal, although no decision has yet been made” [113]. It was only following the disciplinary hearing on 16 February 2023, that immediate dismissal was communicated [120-121].[37]The Respondent submits that, like in Rai, there was no advance notice of dismissal to engage section 111(3), and the presentation of the claim preceded the EDT.[38]The Respondent submits that the Tribunal therefore has no jurisdiction and so the unfair dismissal complaint should therefore be dismissed.[39]The Respondent submits that Tribunal has no jurisdiction to determine the claim for accrued but untaken holiday pay. This is because:(i) By section 23(2)(a) ERA an Employment Tribunal only has jurisdiction to consider a complaint of unauthorised deductions where it is presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made.(ii) The Claimant’s claim under this heading is for money in lieu of holiday entitlement which had accrued and was untaken as at his termination. That entitlement can therefore only arise as at the termination date. Under Regulation 14 of the Working Time Regulations 1998, the obligation to make a payment in lieu of untaken leave can only arise upon termination. This reflects the underpinning provisions of Article 7(2) of the Working Time Directive 2003/88/EC.(iii) The relevant payroll dates were 21 February 2023 (the first after his dismissal, but only 5 days after) and 21 March 2023. The Claimant was made a payment in lieu of untaken holiday entitlement on 21 March 2023 in the sum of £2,096.34, from which deductions for income tax and national insurance were taken, leaving the net sum paid of £1,760.94.(iv) The Claimant asserts that this sum was deficient; but he has presented it prematurely, on 8 February 2023, before his Effective Date of Termination (when the payment would be calculated) and before the paydays postdating his dismissal in February, and in March (in which holiday entitlement was paid).[40]The Respondent submits that the complaint should therefore be dismissed because, as per section 23(2)(a) ERA, a claim for unauthorised deductions must be presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made.[41]The Respondent submits that as the Claimant presented his claim on 8 February 2023, before the February wages payment was paid or fell due to be paid, the Tribunal only has jurisdiction to determine the arrears of pay claim for the period from 3 January 2023 – 31 January 2023 (based on the pay day of 20 January 2023).[42]The Respondent therefore submits that the Tribunal should(a) dismiss for want of jurisdiction the complaint of unfair dismissal;(b) dismiss for want of jurisdiction the complaint in respect of holiday pay;(c) declare that it has jurisdiction to determine the complaint of arrears of pay only in respect of the period 3 January – 31 January 2023.[43]The Respondent also submits that, given the interim relief judgment, the Claimant is now estopped from arguing a wholly new claim inconsistent with his original claim which would have prevented the interim relief application from proceeding. MY CONCLUSIONS[44]Neither party argues that the Claimant’s dismissal on the 16 February 2023 was on notice. That being so I need not consider arguments made relating to section 111(3) of the ERA.[45]There is reference to the need for time limit issues to be taken in to account at para 28 of his reasons.[46]EJ Quill’s considers, at paragraph 56, the disadvantage that is likely to be suffered by the Respondent if the amendment is allowed. He noted that “had the Claimant made his application earlier, then there would have been no need for the Respondent to focus on why sections 111(2)(a) and 111(3) of the Employment Rights Act 1996 should lead to the conclusion that his claim did not have a pretty good chance of success…”.[47]There is therefore clear reference to the Respondent making arguments relating to 111(2)(a) and 111(3) of the ERA at the hearing before EJ Quill. The issue regarding the date on which the original claim was made was therefore a matter that EJ Quill would have been aware of when deciding the amendment application and in deciding that “the section 103A claim [is] to continue on the basis of an allegation that the reason for the dismissal on 16 February 2023.”[48]Further, at paragraph 58 of his reasons, EJ Quill states that it would not be beneficial for the Claimant to submit a fresh claim.[49]It is therefore clear from EJ Quill’s reasons of the 24 February 2024, that he had in mind section 111(2)(a) and 111(3) of the ERA when determining the amendment application and that the amendment was granted instead of the Claimant submitting a fresh claim.[50]In Galilee v Commissioner of Police of the Metropolis UKEAT/0207/16/RN, His Honour Judge Hand QC held that: Neither the procedural common law doctrine of “relation back” (now defunct - see Beecham Group plc v Norton Healthcare Ltd [1997] FSR 81, Liff v Peasley [1980] 1 WLR 781 and Ketteman v Hansel Properties Ltd [1987] AC 189) nor section 35(1) of the Limitation Act 1980 apply directly to amendments to pleadings in the ET, which introduce new claims or causes of action. These take effect for the purposes of limitation at the time permission to amend is given and do not “relate back” to the time when the original proceedings were commenced and in so far as the reasoning in the cases of Rawson v Doncaster NHS Primary Care Trust UKEAT/0022/08, Newsquest (Herald and Times) Ltd v Keeping UKEATS/ 0051/09 and Amey Services Ltd and Another v Aldridge and Others UKEATS/0007/16 is based on the “relation back” doctrine, this is inconsistent with statements in Potter and Others v North Cumbria Acute Hospitals NHS Trust and Others (No 2) UKEAT/0385/08, [2009] IRLR 900 and Prest v Mouchel Business Services Ltd UKEAT/0604/10, [2011] ICR 1345. Alternatively, Rawson, Newsquest and Amey Services were wrongly decided (on that point). On either basis they would not be followed (see Lock and Another v British Gas Trading Ltd (No 2) UKEAT/0189/15, [2016] IRLR 316).[51]At paragraph 19, HHJ Hand QC noted that in consideration of the appeal to the EAT, “[…] what might be termed as the prior question, as to what, in the context of ET procedure, is the effect of allowing an amendment? Putting it another way, does the common law doctrine of “relation back” apply so that allowing an amendment must have the consequence of defeating any limitation point the Respondent would otherwise have?” It is that issue that is of relevance in this case.[52]In Galilee, the factual matrix is somewhat different to in this case: in Galilee the application for amendment was argued to be outside the three month time limit whereas in this case the original claim was premature. However, the rationale by which it was decided on what date an amendment has effect remains applicable.[53]I have borne in mind that the starting point must always be the wording of statute itself. On the plain reading of sections 111(2) to (3) the Tribunal has no discretion to entertain a complaint made prematurely whereas there is discretion to accept a complaint made late (outside the primary three month time limit).[54]The EAT’s decision in Rai v Somerfield Stores Ltd [2004] IRLR 124 also involves a claim made prior to the EDT. The ET found that Mr Rai was not dismissed with notice and that his claim was made three days prematurely so there was not have jurisdiction in light of section 111(2)(a). The EAT dismissed Mr Rai’s appeal. The primary focus of arguments to the EAT was(i) whether or not Mr Rai’s dismissal was with notice and hence whether the ET had jurisdiction pursuant to section 111(3) and(ii) whether the Mr Rai had been constructively dismissed prior to the date on which the claim form was presented to the ET.[55]Whilst the decision to dismiss the appeal in Rai was on the basis that there was no jurisdiction because of section 111(2)(a), in Rai the EAT did not consider the effect of an amendment on the date that the complaint takes effect. Therefore whilst Rai confirms, in a general sense, the operation of section 111(2)(a), it does provide guidance in relation to the central issue that I must determine.[56]The interplay between the date that a claim was presented and the effect of an amendment was granted was also consider in Prakash v Wolverhampton City Council [2006] Lexis Citation 1095. In that case the EAT made the following comments: [61] The Respondent's case involves holding that an amendment can be allowed to add or substitute a cause of action that was not available when the originating application was first presented. There is nothing in the rules that expressly prevents such an amendment being allowed. It would obviously make sense in a case such as this. to allow an amendment (if considered appropriate) rather than require the Claimant to issue a second originating application. We do not see any basis for the technical rule that used to apply at one time under the Rules of the Supreme Court that one could not permit by amendment the raising of a cause of action that had accrued after the issue of the writ. [62] Statutes that deal with discrimination on the grounds of disability, sex, race and so on are phrased differently but claims under these statutes are frequently amended so as to add different causes of action. We see no reason in principle why a cause of action that has accrued, so as to speak, after the presentation of the original claim form, should not be added by amendment if appropriate. The claim form can still serve as a vehicle for the amendment even if the original cause of action is bad. Some support for this proposition can be found in the passage that we have Cited from Chaudhary. [my underlining] [63] We see no reason why the term "present” Should be given any technical meaning. in our opinion, a claim can be “presented” as well by amendment as by the issue of a separate originating application. If this were not so, in very many cases amendments adding new causes of action would require to be initiated by the presentation of a fresh originating application rather than by amendment. In our opinion, such is neither current practice nor in accordance with common sense nor the law as we understand it.[57]In Commissioners for HM Revenue & Customers v Serra Garau [2017] ICR 1121, the issue to be decided by the EAT was whether more than one certificate can be issued by Acas under the statutory procedures and what effect, if any, a second such certificate has on the running of time for limitation purposes. In doing so it considered the relevant enacting legislation and regulations.[58]The Respondent relies on this case as authority for the proposition that a limitation clock that has never started is not stopped by reference to early conciliation conducted prior to it running [as per paragraph 30].[59]However, the EAT’s decision in Commissioners for HM Revenue & Customers v Serra Garau was made against the backdrop of the very specific legislation and rules governing the Early Conciliation process and the impact of the Early Conciliation certificate on time limit issues. There is no consideration of the impact of an amendment on a claim made prematurely. Consequently, I consider that what is said at paragraph 30 is of limited assistance in terms of the issues that I must decide.[60]Relying on Galilee and Prakash I find that that it is not the effect of an amendment to backdate the amended claim to the date on which the original claim form was presented. Rather the amendment takes effect for the purposes of limitation at the time permission to amend is given. I therefore find that the amendment allowed by EJ Quill on 23 February 2023 has effect as of that date and results in the amended claim not being caught by section 111(2)(a) as being premature. The same principle equally applies in respect of section 23(2)(a) ERA and regulation 30(2)(a) of the WTR.[61]In relation to the estoppel argument made by the Respondent, the amendment application was determined during the course of the interim relief hearing. EJ Quills had discretion to proceed with the hearing in the manner that he did under The Employment Tribunals Rules of Procedure 2013. Whilst the Claimant may have conceded during the course of that hearing that he was dismissed on the 16 February 2023 not the 2 February 2023, such concessions are not uncommon in hearings before the Employment Tribunal at the preliminary stage. In the circumstances of this case and considering the manner in which proceedings unfolded at the interim relief hearing, I do not consider that the previous Judgment in relation to interim relief estops the Claimant from pursuing his automatic unfair dismissal claim.[62]I apologise to the parties for the delay in providing this Judgment and Reasons. COSTS JUDGMENT The Respondent’s application for costs is refused.[1]I conducted a hearing on 23 February 2023, and gave judgment with reasons that day. The written document containing the judgment and reasons was sent to parties on 2 March 2023.[2]The Respondent made a costs application on 16 March 2023. I gave instructions for a letter to parties about that application which was sent on 3 April 2023.[3]As stated in the letter sent (on my instructions) on 23 September 2024: There was later a hearing before a different judge on 24 May 2023, and orders were sent to parties on 3 June 2023. I note the contents of paragraph 10 of those orders. To summarise, both parties were content for the costs application(a) to be decided by me and(b) on the papers. Paragraph 6.1 of the orders gave instructions. The file contains the Respondent's representative email of 7 June 2023, with attachments. The Claimant was supposed to respond by 21 June 2023. The Tribunal’s file has nothing from his side prior to an email of 12 July from Rich & Carr solicitors which was about other matters. There is no email from the Respondent dated 28 June 2023 on the Tribunal file, other than as forwarded on 16 July 2024, together with bundle. (*) The bundle contains the 1 of 12 Claimant’s 5 April 2023 reply to the 3 April orders, but nothing sent later, by 21 June 2023. Since the file seems incomplete, I am giving the Claimant the further opportunity to either write to the Tribunal and the Respondent by 7 October 2024 with a copy of anything he sent, at the time, in accordance with paragraph 6.1.2 of EJ Michell’s orders, or else the opportunity to submit something now, and ask me to take it into account. I have asked for the file to be returned to me after 8 October 2024, and if there is nothing else from the Claimant by then, I will make the decision based on what is in the file and in the Respondent’s bundle (received 16 July 2024).[4]The Claimant has sent an email dated 3 October 2024, and I have taken the contents into account.
The law
[5]In the Employment Tribunals Rules of Procedure, the section “Costs Orders, Preparation Time Orders And Wasted Costs Orders” is Rules 74 to 84.[6]When an application for costs is made, or when the Tribunal is considering the matter of its own initiative, there are potentially the following stages to the decision.6.1 Has one (or more) of the criteria (for costs to potentially be awarded) as set out in the rules been met.6.1.1 If not, there can be no order for costs.6.1.2 If so, which rule or rules contain the criteria which have been satisfied (and why)?6.2 Is the rule one which requires the Tribunal to consider making an award, or is it one which says the Tribunal “may” consider making an award.6.3 Either way, if the criteria for a costs order are met, that means that the Tribunal has discretion to make an award, not that it is obliged to. So what are the relevant factors in this case, and, taking into account all of the relevant factors (and ignoring anything which is irrelevant), should an award be made.6.4 If an award is to be made, what is the amount of the award? (And what is the time for payment, etc).[7]Rule 84 states: 84. Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay. 2 of 12[8]As per the rule, “ability to pay” is something that “may” be taken into account at each of the last two stages of the decision-making. That is: should an award be made at all; if so, what is the size of the award. A tribunal is not obliged to take “ability to pay” into account, but should specify whether it has done so or not (and, if not, why not). Generally speaking, where a party wants the Tribunal to decide that they do not have the ability to pay, then the onus is on them to(i) raise the point and(ii) provide evidence to back up the argument. That being said, in accordance with the Tribunal’s duty of fairness, and in accordance with Rule 2, it may be appropriate for the Tribunal to seek to ensure that a party (especially a litigant in person) understands that the onus is on them (at least, in cases where the order might be a large one): Oni v NHS Leicester City UKEAT/0133/14.[9]Rule 76, insofar as is relevant, states: 76.— When a costs order or a preparation time order may or shall be made(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; (b) any claim or response had no reasonable prospect of success (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[10]So one set of criteria for a costs order to be made are those set out in Rule 76(2). I need say no more about them.[11]If the criteria set out in Rule 76(1) are met, the Tribunal must actively consider whether or not to make an award (though it is not obliged to decide to make the award). The three subparagraphs are each independent. It is sufficient that any one of (a), or (b) or (c) is met.[12]As was noted in Radia v Jefferies International Ltd [2020] UKEAT 7_18_2102:63. … earlier authorities, about the meaning of “misconceived” in Rule 40(3) in the 2004 Rules of Procedure, are equally applicable to this replacement threshold test in the 2013 Rules. See in particular Vaughan v London Borough of Lewisham [2013] IRLR 713 at paragraphs 8 and 14(6). However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion. 3 of 1264. This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?[13]So there can be an overlap in the arguments about whether the party acted reasonably in bring the claim (or conducting the pursuit of the claim or response) [Rule 76(1)(a)] and about whether the claim or response had no reasonable prospects of success [Rule 76(1)(b)]. Both sets of arguments can (and should) be considered. See Opalkova v Acquire Care Ltd EA-2020-000345-RN at paragraphs 24 and 25.[14]As Radia makes clear (paragraphs 65 to 69), a tribunal deciding that the claim/response had no reasonable prospect of success for costs purposes is not conducting the same analysis as for a strike out application. The Tribunal is not necessarily obliged to take the paying party’s case at its highest, but rather can assess what the paying party knew (or ought reasonably to have known), and when, about the strengths/weaknesses of its case. In terms of what they knew (or should have known), a party is “likely to be assessed more rigorously if legally represented”: Opalkova para 26.[15]As Opalkova also make clear, when there are multiple claims/complaints, the issue of bringing, or continuing, with a claim or response which had no reasonable prospect of success must be analysed separately for each complaint.15.1 The fact that one or more of the complaints succeeded would not – in itself - prevent a respondent from persuading the Tribunal that there were other complaints that had no reasonable prospect of success.15.2 Correspondingly, the fact that one or more of the complaints failed – that is that the response to that part of the claim succeeded - would not, in itself, prevent a claimant from persuading the Tribunal that part(s) of the response which dealt with the complaint(s) which did succeed had no reasonable prospect of success[16]Where the argument is that the party has acted “vexatiously, abusively, disruptively or otherwise unreasonably” then the only conduct that is taken into account is that which is (either the bringing of the proceedings or) the way that the litigation has been conducted. The precise details of the conduct in question will be relevant to both(a) whether the criteria in Rule 76(1)(a) are met and(b) whether, in all the circumstances, the Tribunal should exercise its discretion to make a costs order. 4 of 12[17]If the criteria to potentially make a cost order are met, then the factors which are potentially relevant to the decision about whether to make such an order (and, if so, how much the award should be) include, but are not limited to, the following. However, the Tribunal’s primary duty is to follow the wording of the rules, and to make specific decisions on the merits of the case in front of it.17.1 Costs are the exception rather than the rule. A party seeking costs will fail if they do not demonstrate that the criteria for potentially making such an order (in the Tribunal rules) have been met. However, the mere fact alone that the criteria have been met does not establish that the general rule is to make a costs order in such circumstances.17.2 Costs, if awarded, must be compensatory, not punitive. If the argument that there has been unreasonable conduct is made then the whole picture of what happened in the case is potentially relevant. However, it is necessary to identify the specific conduct, and decide what, specifically, was unreasonable about it and analyse what effects it had. Some causal link between the conduct and the costs sought by the other party is required. Yerrakalva v Barnsley [2011] EWCA Civ 1255.17.3 Was the party warned that an application for costs might be made, and, if so, when, and in what terms.17.3.1 The lack of such advance warning does not prevent an application being made (or the Tribunal granting it). Rule 77 gives a party up to 28 days after the date on which the judgment finally determining the proceedings was sent to the parties. Furthermore, while the rule give the other party the right to a reasonable opportunity to make representations in response to the application, it does not impose a requirement that they were warned before the application was made.17.3.2 However, the issue of whether a party (especially a litigant in person) was aware of the possibility of having to pay costs is likely to be relevant. This can be demonstrated by something other than a costs warning from the opposing party: for example, comments made at a preliminary hearing; the fact that they had been involved an earlier case in which there was a costs application; the fact that they themselves had expressed an intention to seek costs from the other side.17.3.3 If a warning has been made, its precise terms will be relevant. A simple boiler plate threat to apply for costs, which appears to a knee jerk response that the party (or its representative) always sends out is likely to be far less persuasive than a considered attempt to address the arguments raised by the other party, and explain why they have no prospect of success, or to explain why the particular conduct has been 5 of 12 unreasonable, and what the rules or case management orders (specifically) require instead.17.3.4 The timing of the warning will be relevant, as will the issue of whether the warning was updated and repeated at relevant stages.17.3.5 The fact that a costs warning was made, even one which is clear and detailed and well-timed, and which identifies the precise basis on which the application was later made, does not guarantee that an order will be made.17.4 What advice did the party have? Who from? When? It can be a double-edged sword that a party has taken legal advice. On the one hand, they might seek to argue that since a lawyer advised them that the claim had merit, it was not unreasonable to pursue it. On the other hand, the opposing party might seek to argue that (even if the paying party was a litigant in person at the Final Hearing) the fact that they had legal advice available shows that they ought to understood the claim was hopeless, and/or that their conduct was inappropriate, and/or that a settlement offer that had been made was a good one. To rely on the former argument, the paying party might have to waive privilege over the advice in question. However, there is no obligation to do so to defend itself against the latter inference; where privilege is not waived, the Tribunal will not make assumptions that the party specifically received advice that they were acting unreasonably, but the fact that advice was available to them is likely to undermine an argument that, as a litigant in person, they could not reasonably have been expected to anticipate the arguments being raised by the costs application. Submissions[18]The hearing before me was for Interim Relief. I do not think it necessary or appropriate for me to copy and paste large sections of the written reasons (for refusing the application) into this document. I remember the hearing, and, in any event, I have re-read the judgment. My analysis of the Claimant’s interim relief application which I set out there forms part of my analysis of the Respondent’s costs application, and the Claimant’s replies.[19]As I made clear in those reasons, the Claimant had presented the application based on a theory that(i) he had been dismissed on 2 February 2023 and(ii) the application was within 7 days of the dismissal. (See paragraphs 29 to 31 of the reasons, for example). As stated at paragraph 39: During the hearing today, the Claimant conceded that he had not been dismissed on 2 February, and sought permission to amend his claim to rely instead on a dismissal by the letter of 16 February. That was 7 days ago 6 of 12[20]The Respondent’s costs application is based on the argument that it should receive the costs incurred in seeking to refute the Claimant’s argument about a 2 February 2023 dismissal prior to the stage in the interim relief hearing (discussed at paragraph 52 of the reasons) when the Claimant(i) abandoned that argument,(ii) accepted that the dismissal date was the one which the Respondent had contended for (namely 16 February), and(iii) made the application to amend.
The Relevant Law
[21]The costs which the Respondent seeks are:21.1 A contribution to the costs of preparing ET3, to reflect the arguments it had to make about why there was no dismissal on 2 February 2023.21.2 Costs of witness statement of Darren Cargill (the person who wrote the dismissal letter, on the Claimant’s case as originally pleaded) intended to refute the contention that the letter was a dismissal letter.21.3 A contribution to the costs of preparing the respondent’s hearing bundle, to reflect the unnecessary documents it had to include to attempt to show that there was no dismissal on 2 February 2023.21.4 A contribution to the costs of preparing skeleton argument, to reflect the fact that that document was based on the Claimant’s contention that there was a dismissal on 2 February 2023[22]By later letter dated 7 June 2023, the Respondent attached a schedule, and an explanation, seeking £8,447. The amount would have been £10,136.40 including VAT, but payment of the sum for VAT was not sought.[23]The Claimant’s 26 March 2023 letter is 13 pages.23.1 The first eight pages are about different issues.23.2 On the ninth page, he asserts that he had initially regarded the 16 February letter as simply being a “revised” dismissal letter, which did not change his opinion that he had been dismissed with effect from 2 February. He also pointed out that the 16 February letter was after he had already submitted the claim form, and application for interim relief. He asserted that the short time limits associated with interim relief applications did not afford him the time to sit back and reflect.23.3 The tenth and eleventh pages are not relevant for present purposes. The fact that the Respondent might have been considering dismissing him on 2 February 2023 and earlier does not address the Respondent’s arguments for costs, as set out in its 16 March 2023 application. 7 of 1223.4 On page 12, the letter asserts that the actual dismissal (on 16 February 2023) was for the same reason as the dismissal that he (claims to have) originally believed took place on 2 February 2023.23.5 The summary section of the letter contains several points that are not relevant for present purposes, but includes the assertion that the process was confusing, and the assertion that the Respondent’s attitude and/or the Claimant’s mental health contributed to the fact that he was confused by it.[24]I note the Claimant’s letter of 5 April 2023, but do not need to comment on it.[25]I note the Claimant’s 3 October 2024 letter, and what he says about the protected disclosures and his correspondence with other agencies. I am satisfied that the Claimant is sincere in his belief that there has been wrongdoing, and in his belief that there has been an honest and genuine attempt by him to draw attention to it. I do not know whether he is correct that there has actually been wrongdoing, and I do not need to try to decide that for the purpose of making decisions on the costs application. Analysis and conclusions[26]The Claimant made clear at the hearing that he was not arguing that there had been a constructive dismissal. As mentioned in paragraph 13 of the reasons: For the claimant to succeed in his interim relief application, it is necessary for him to show that there is a pretty good chance of succeeding on each required element of the s.103A claim. In other words that he has to show there is a pretty good chance that the final tribunal will decide that there actually was a protected disclosure, as well as showing that there is a pretty good chance that the disclosure, if any, was the principal reason for his dismissal[27]To be clear, then, one of the elements that the Claimant had to demonstrate was that he had a “pretty good chance” of showing that he had been dismissed [as well as showing that he had made a protected disclosure (or more than one), and that that protected disclosure was the reason for the dismissal.][28]It is by no means academic that the Respondent accepted, before the hearing on 23 February 2023, that the Claimant had actually been dismissed by the Respondent. There is a crucial difference between a dismissal by Mr Cargill on 2 February 2023 and by Ms Prajapati on 16 February 2023. Apart from being two different people, with different jobs, and different potential motivations for why a (particular) protected disclosure might cause them to want to get rid of the Claimant, anyone dismissing the Claimant on 2 February 2023 could only have had knowledge of events up to that date, whereas anyone dismissing the Claimant on 16 February might have had knowledge of events from 3 to 16 February. 8 of 12[29]Had the Claimant maintained his argument, at the interim relief hearing, that he was dismissed on 2 February 2023, the application would not have succeeded. I would not have decided that he had a pretty good chance of showing (at a final hearing) that he was actually dismissed on 2 February 2023. On the contrary, the Respondent had a very good chance of showing (at a final hearing) that he was not. As mentioned in paragraph 32 of the reasons, the Claimant’s case was based on the fact that the letter said the time for appeal was “within five working days of receiving this notice of dismissal”. However, the rest of the letter made clear that he was not dismissed, and the Respondent promptly corrected the error. My decision would have been that there was – at most - a very low chance that a tribunal, at a final hearing, would decide that the words used in the letter amounted to a dismissal (and there was no argument that the Claimant had been told orally that he was dismissed).[30]The specific element of the Claimant’s argument that he had a “pretty good chance” of showing that he was actually dismissed on 2 February 2023 is one which had no reasonable prospects of success. Since that was a necessary ingredient of the interim relief application that he presented (prior to the concession and amendment application), it follows that the interim relief application as a whole had no reasonable prospects of success.[31]Although I take into account that the Claimant is a litigant in person, I am satisfied that he must have known that the argument that Mr Cargill’s letter of 2 February 2023 (which was amended and corrected the same day) did not amount to a dismissal was likely to succeed. [At the least, he must have known that there was no realistic chance that a judge, at an interim relief hearing, would decide that he had a “pretty good chance” of proving that he had been dismissed by that letter.] I accept that simply issuing a new letter later on could not amount to the retraction of a dismissal which had already been brought about by an original letter; however, that is not what happened here. He received a letter which made clear (on any objective basis) that he was being given a written warning and was required to return to work. (See paragraph 40 of the reasons). The correction of the phrase “within five working days of receiving this notice of dismissal” was done promptly and removed any doubt whatsoever.[32]I am satisfied that the criteria in Rule 76(1)(b) are met. The interim relief application (as presented in writing on 8 February 2023, and based on alleged dismissal on 2 February 2023) had no reasonable prospect of success. I am satisfied that the Claimant knew or should have known that that was the case. That is, even as a litigant in person, he should have realised that no judge, dealing with an interim relief application, was going to decide that he had a pretty good chance of establishing (at a final hearing) that he had been dismissed on 2 February 2023.[33]I also have to consider if there was unreasonable conduct of the proceedings. One of the Claimant’s arguments appears to be that time limits are short, and that if he 9 of 12 failed to present the interim relief application by 9 February 2023, and it subsequently turned out that he had been dismissed on 2 February 2023, then he would be out of time. That is true, of course. However, the Claimant did not make the application on the basis that he was doing so simply to protect his position, and that he would withdraw provided the Respondent formally confirmed that he was not dismissed. Furthermore, as stated in previous paragraphs, my assessment is that an employee could not reasonably have formed the belief that the 2 February letter operated to dismiss them.[34]In terms of presenting the 8 February application, the fact that the Claimant’s conduct could potentially be categorised as falling within Rule 76(1)(a) as well as 76(1)(b) adds nothing.34.1 I accept the Claimant’s argument that there was only limited opportunity between the notice of hearing on 15 February, and seeing the Respondent’s defence to the application, and the start of the hearing on 23 February, for him to abandon the (in my assessment, misconceived) assertion that he had been dismissed on 2 February 2023. That is by no means a complete defence to the Respondent’s argument that he should have to pay costs. However, having presented the application in the first place, I do not think that there was additional unreasonable conduct by failing to withdraw it prior to the start of the hearing.34.2 The only reason that presenting the application was unreasonable is that it had no reasonable prospects of success. I am satisfied that the Claimant was not seeking to annoy the Respondent for improper reasons. He believed that there had been wrongdoing and he wanted to present the matter to the Tribunal; it was not reasonable for him to think that an interim relief application would succeed, but, other than that, was not acting vexatiously.[35]Had the Claimant in fact waited until 16 February, and issued his interim relief application then, it seems to me that the Respondent’s costs would have been largely the same. No statement from Darren Cargill might have been required in those circumstances. That being said, I am not sure it was needed in any event, given the contents of the contemporaneous correspondence.[36]Had the Claimant in fact withdrawn his 8 February application before the 23 February hearing, but then presented a new application based on the 16 February dismissal, then, it seems to me that the Respondent’s costs would have probably been greater than they actually were; in any event, I am confident that they would not have been smaller.[37]It was probably frustrating for the Respondent’s legal team that the morning of the hearing was spent addressing one argument (dismissal on 2 February) only for the Claimant to pivot before the lunch break. This did not extend the hearing, however. 10 of 12 It would not have concluded prior to 1pm had the Claimant been quicker to concede that he had not been dismissed on 2 February and to seek permission to amend the application. Furthermore, the substance of the skeleton argument would have been largely the same if (before the hearing commenced) the Claimant had been relying solely on a dismissal date of 16 February 2023 (by Ms Prajapati). The Respondent would still – in my assessment – have been keen to present arguments about what Mr Cargill had done, and how Mr Cargill’s decision was not infected by any desire to retaliate for (alleged) protected disclosure. Quite apart from wanting to show me that the employer as a whole had acted reasonably, the Respondent’s legal team would have been likely to want to head off any potential Jhuti type argument (for example, that even if Ms Prajapati was not motivated by protected disclosure, she had been deceived by others, including Mr Cargill).[38]In my assessment, the contents of the bundle and the skeleton argument would have been largely similar, though with no need for the submissions about section 111 ERA and the relevant case law on its interpretation (in terms of when it is too early to present an unfair dismissal complaint).[39]The interim relief application failed in any event, even after I had allowed the amendment. A significant part of the Claimant’s argument for why he should succeed is briefly alluded to in paragraph 61 of the reasons (and in the reconsideration decision). The Claimant argued that even if he was dismissed for absence, then that would mean that a complaint under section 103A ERA should succeed in these circumstances, because of the connection between his absence and the subject matter of his (alleged) protected disclosures, and the Respondent’s (alleged) failures to address the concerns which he had raised. The Claimant relied on that argument regardless of whether the dismissal occurred on 2 February 2023 or 16 February 2023. It is another reason why the application would have failed even if he had persisted in the argument that he was dismissed on 2 February; however, the change to 16 February did not help him in this regard, and that would have been the case even if he had waited until on or after 16 February 2023 to make the application.[40]It is not fatal, in itself, to the Respondent’s application that (in my judgment) its costs would have been largely similar even had the Claimant waited until 16 February (and presented his interim relief application then) rather than submitting the claim on 8 February 2023 (and being allowed to rely on dismissal date of 16 February, because of the amendment which I granted). However, that is a relevant factor to the exercise of my discretion. Costs are to be compensatory, rather than punitive. So long as I can be satisfied that some unnecessary costs (even a small sum) were incurred, then I could make the decision in principle, to award some costs, and then decide the amount. As per Yerrakalva, some causal link between the impugned conduct and additional costs to the Respondent is required, but, so long as that link exists, the Respondent is not required to prove that the costs it is seeking would not have been incurred in any event. 11 of 12[41]However, in these circumstances, I do not exercise my discretion to award costs. The Claimant’s attempt to argue for a 2 February dismissal was misguided, but, before lunch on the day of the hearing (23 February), he had abandoned that argument. As I said when allowing the amendment, had I refused the amendment, the Claimant would still have been in time to issue interim relief proceedings later the same day, based on 16 February dismissal. Had that happened, then the Respondent would have truly thrown away almost all the costs of the 23 February hearing. There would then have been a strong argument that the Claimant should pay almost all of the Respondent’s costs of preparing for and attending that 23 February hearing; the fact that there would – on this hypothesis – have been two separate hearings, one of which was unnecessary, and caused by the Claimant’s attempt to argue for a 2 February dismissal date, would have been highly relevant. However, that is not what happened. Instead, the amended interim relief application was disposed of on the day, without the need for the parties to prepare for, and attend, a second hearing. In these circumstances, I am satisfied that the Respondent should be responsible for its own costs of the hearing, including preparation for the hearing.