Mr L Ramos v “Bang Bang Oriental Foodhall” (a trading name of Edgware Capital Ltd) and Yaki Ya! Ltd: 3301771/2023

EMPLOYMENT TRIBUNALS

Case No 3301771/2023

Between

Mr L RamosClaimant

“Bang Bang Oriental Foodhall” (a trading name of Edgware Capital Limited) R1 Yaki Ya! Ltd R2Respondent

Before

Employment Judge Quill

In person for claimant

Mr C Payne (instructed by counsel) for respondent

Date 29 March 2025

JUDGMENT

[1]The current respondent, that is the entity identified in section 2 of the claim form as “Bang Bang Oriental Foodhall” is a trading name of Edgware Capital Limited.

[2]The current respondent did not place the advert (page 43 of hearing bundle) which is the subject of the complaint.

[3]As a result of the decision on the preliminary issue, all and any complaints against the current respondent (Edgware Capital Limited sued as “Bang Bang Oriental Foodhall”) is dismissed.

[4]Because of the case management decision made at the hearing, the entire claim has not been dismissed. It will continue against the new respondent, Yaki Ya! Ltd. Approved by:

REASONS

[1]For ease of reference, I will refer to R1 as “the Respondent” as R1 was the only respondent until 28 March 2025, and the costs application has nothing to do with R2, which was added on 28 March 2025.

[2]A hearing took place on 28 March 2025. The Respondent made a costs application during the hearing. The Claimant wanted time to respond, which I agreed. Both parties were content for the decision to be made on the papers (that is, without a further hearing) following written submissions.

[3]The timetable for the submissions was confirmed in writing by letter dated 31 March 2025.

[4]As well as the submissions made before and during the hearing, I have taken account of:4.1 The Respondent’s email of 1 April 2025 at 11.57, with attachments

4.2 The Claimant’s email of 11 April 2025 at 16.00.

4.3 The Claimant’s email of 14 April 2025 at 16.59. Case Number: 3301771/2023 2 of 11

4.4 The Respondent's email of 25 April 2025 at 09.53 with attachment

4.5 The Claimant’s email of 25 April 2025 at 10.43

4.6 The Claimant’s email of 1 May 2025 at 10.16

4.7 The Respondent’s email of 1 May 2025 at 11.31

[5]Although some of the items mentioned above were not sent in accordance with the case management orders which I made, I think it is in interests of justice to take all of it into account.

[6]The correspondence was referred to me on 14 May 2025.

The Law

[7]In the Employment Tribunals Rules of Procedure, the section “Costs Orders, Preparation Time Orders And Wasted Costs Orders” is now “Part 13” of the 2024 Rules, and is Rules 72 to 82.

[8]The 2024 Rules on costs are sufficiently similar to previous versions that older case law is still relevant.

[9]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.9.1 Has one (or more) of the criteria (for costs to potentially be awarded) as set out in the rules been met.9.1.1 If not, there can be no order for costs.

9.1.2 If so, which rule or rules contain the criteria which have been satisfied (and why)?

9.2 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?

9.3 If an award is to be made, what is the amount of the award? (And what is the time for payment, etc).

[10]Rule 82 states: 82. Ability to pay In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the Case Number: 3301771/2023 3 of 11 paying party's (or, where a wasted costs order is made, the representative's) ability to pay.

[11]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 (and the timetable for payment). 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

[12]Rule 74, insofar as is relevant, states: 74.— When a costs order or a preparation time order may or must be made (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success

[13]So one set of criteria for a costs order to be made are those set out above. The tribunal is not obliged to make an award in such circumstances, but it may make an order.

[14]If the criteria set out in Rule 74(2) 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. (Paragraph (c) is not relevant in this case.)

[15]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.

64. 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 Case Number: 3301771/2023 4 of 11 (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?

[16]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). Both sets of arguments can (and should) be considered. See Opalkova v Acquire Care Ltd EA-2020-000345-RN at paragraphs 24 and 25.

[17]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.

[18]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.18.1 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.

18.2 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

[19]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. This ground can potentially be established even where the paying party has been successful in the litigation. The precise details of the conduct in question will be relevant both the(a) whether the criteria in Rule 74 are met and/or

(b) whether, in all the circumstances, the Tribunal should exercise its discretion to make a costs order.

[20]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 Case Number: 3301771/2023 5 of 11 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.20.1 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.

20.2 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

20.3 Was the party warned that an application for costs might be made, and, if so, when, and in what terms.20.3.1 The lack of such advance warning does not prevent an application being made (or the Tribunal granting it). The rules give 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 gives 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.

20.3.2 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.

20.3.3 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 unreasonable, and what the rules or case management orders (specifically) require instead. Case Number: 3301771/2023 6 of 11

20.3.4 The timing of the warning will be relevant, as will the issue of whether the warning was updated and repeated at relevant stages.

20.3.5 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.

20.4 What advice did the party have? Who from? When?

20.5 Is there admissible evidence about settlement offers. Was there an “open” offer (that is, one which was not “without prejudice”). Alternatively, was there an offer which was “without prejudice save as to costs” (that is, an offer which was inadmissible at an earlier stage, but which became relevant when costs were being discussed; whether raised as a defence to a costs application, or in support).20.5.1 The rules in the civil court about so-called “Calderbank” offers do not apply in the Employment Tribunal. Kopel v Safeway.

EAT/0281/02

20.5.2 There is no presumption that a claimant who rejected an offer (which was an open offer, or which was “without prejudice save as to costs”) will have to pay costs, even if they were warned that their rejection of the offer would be (part of) the basis of an application for costs.

20.5.3 The same is true if a Claimant “wins” their case, but is awarded less compensation than was offered.

20.5.4 The same is true if a respondent “loses” the case, and is ordered to pay more compensation than the claimant offered to settle for.

20.5.5 Admissible evidence about a prior offer (and the rejection) can be taken into account, but the test which must be applied is set out in the wording of Rule 76. The failure to accept a prior offer might be relevant to whether the claimant has conducted proceedings unreasonably, but does not automatically establish that they have done so. Anderson v Cheltenham and Gloucester plc.

UKEAT/0221/13/BA

20.5.6 The fact that a respondent has made an offer to settle, even a sizeable one, does not, in itself, demonstrate that the respondent considered that the claims (or any of them) had reasonable prospects of success. (See Vaughan v Lewisham

UKEAT/0533/12/SM

, especially para 14(3)). Similarly, the fact that a claimant had made offers to settle (even for small sums, does not, in itself, demonstrate that the claimantg considered that the claim(s) had low prospects of success. Case Number: 3301771/2023 7 of 11 Background and Parties’ Submissions

[21]The parties are familiar with the points in dispute about costs and of the decision that was made at the hearing, I will therefore be brief when mentioning those things in this document, though I have taken full account of all the evidence heard at the hearing, all my reasons for the decision on the preliminary, and everything the parties have raised.

[22]The Claimant’s claim was:22.1 That he saw a job advertisement

22.2 The advert was discriminatory (and/or implied that it demonstrated the recruitment process would be discriminatory)

22.3 The Respondent placed the advert.

22.4 He, the Claimant, was entitled to compensation from the Respondent

[23]In terms of the second of these points, it is important to emphasise that there is now a different respondent to the claim, and so no decisions have been made about whether there have been any breaches of the Equality Act 2010 ("EQA") in relation to the advert or the recruitment process. That being said, the Respondent’s costs application does not invite me to decide that there was no reasonable prospect of a tribunal deciding that there was discrimination.

[24]The Respondent’s defence to the claim was that it did not place the advert. This issue was decided as a preliminary issue at a hearing with evidence, and was decided in the Respondent’s favour.

[25]In support of costs, the Respondent argued that, even as of the date that the claim was presented, the Claimant(i) had no reasonable prospects of success and

(ii) should have known that. The Respondent argues that the advert, which the Claimant had seen, clearly demonstrated that the advert was not placed by “Bang Bang Oriental Foodhall” itself, but rather was (on the face of the advert) seeking staff to be employed by a business which traded from a location within a location known as Bang Bang Oriental Foodhall.

[26]The Respondent also says that even if the proposition mentioned in the last paragraph is not correct, then, from the date the response was sent to him, the Claimant ought to have understood that his claim had no reasonable prospects of success against the respondents which had submitted that response. The response was submitted to the Tribunal on 7 March 2023, and sent by the Tribunal to the Claimant on 21 March 2023.

[27]The Respondent acknowledged that the Claimant is litigant in person, but states that he has been put clearly on notice of what the rules say about costs, and about Case Number: 3301771/2023 8 of 11 what the Respondent’s arguments would be. This was said to be both because of specific comments to him by the Respondent during this litigation, but also because (as evidenced by the documents starting at pages 107, 112 and 151 of the bundle), the Claimant had participated in previous Employment Tribunal litigation.

[28]After the claim and response were presented, orders were made for the Claimant to supply a copy of the advertisement, and for the Respondent to comment on it.

[29]The response did not refer to Edgware Capital Limited. It have an email address which ended “@bangbangoriental.com”. It was from Ms Lam, who is the Manager of Bang Bang Oriental Foodhall.

[30]On 22 June 2023, Ms Lam wrote to the Tribunal stating (amongst other things): I do not know who placed the advert and can confirm that the Respondent of whom I represent, certainly did not place the advert.

[31]The Claimant responded by supplying a copy of the advert. He also supplied screenshots which he said supported his argument that he had brought the claim against the correct respondent. These were screenshots of the Respondent’s website, which included details of how to apply for work with the Respondent. However, these were two separate things. The advert did not contain links to website (either to the recruitment page, or at all) and the website did not expressly mention the specific vacancies referred to in the advertisement.

[32]On 21 August, the Tribunal made some further orders for information from the Respondent, copied to both sides (which, in part, were in response to the Claimant’s application to add a new respondent, and in part were necessitated by the Claimant’s failure to comply with the previous orders on time).

[33]On 22 August 2023, the Respondent wrote to the Tribunal, in an email which was not copied to the Claimant at the time (but which was sent to him by the Tribunal on 6 October 2023) and which included: After seeing the advert sent by the Claimant on 2nd June 2023, I can confirm that the advert has come from one of our tenants called Yaki Ya!. This is the trading name of one of our tenants. The Respondent does not know of any employees named Habibur. You will need to speak to Yaki Ya directly. It would be Yaki Ya who placed the advert on gum tree and you will need to ask them for the procedure. There seems to be some confusion which I would like to clarify (I had already clarified this in my response to the claim form, but I will repeat it again) The Respondent (Bang Bang Oriental Foodhall) is the landlord. We have over 20 tenants that rent units from us and have signed individual leases with us. Each unit are responsible for their own business affairs – sales, recruitment of their own staff, Case Number: 3301771/2023 9 of 11 health and safety, insurances etc. The landlord is not involved in any other affairs of the tenants. It is much like a set up of a shopping centre (the landlord) and you have a food court (Macdonalds, KFC, Pizza Hut under one roof). The landlord is not responsible for the affairs of these individual units). I hope this clarifies. I can confidently confirm that the Respondent did not place any such advert.

[34]In the subsequent correspondence, the Claimant made clear that he did not wish to withdraw against the existing respondent and proceed against a different respondent (only). He did want a new respondent to be added as well as, not instead of, that mentioned in the original claim form.

[35]His arguments can be summarised as being twofold:35.1 Firstly, he did not necessarily accept the denial that it was the existing respondent which placed the advert.

35.2 Secondly, even if Yaki Ya placed the advert, they might have been doing it on behalf of “Bang Bang Oriental Foodhall”.

[36]I can deal with the second point quite briefly. If the second argument is separated away from the first, and on the hypothesis that it was clear which company operated Bang Bang Oriental Foodhall and clear which (different) company placed the advert, there would have been no rational basis on which to suspect that the latter company had placed the advert for someone who was to be recruited by and/or employed by the former company.

[37]In terms of the first point, the Respondent argues that it was clear that the advert was placed by a Japanese Street Foods restaurant and clear that the named respondent was not a Japanese Street Foods restaurant. Also, the Respondent argues, it was clear from the that the restaurant in question was “in” a “Food Hall” which was “named Bang Bang Oriental”, which makes a clear distinction between the potential employer and the location at which the work was to be done.

[38]It also says that the logo in the advertisement was clearly a logo for Yaki Ya! and that it was unreasonable for the Claimant to have failed to (as the case may be)(i) have noticed that logo and/or

(ii) taken it as confirmation that the correct respondent to an employment tribunal claim about the advert was Yaki Ya! Ltd, and not “Bang Bang Oriental Foodhall”.

[39]The Claimant’s arguments include, amongst other things, that there is an inconsistency between the Respondent’s argument about the type of staff it does employ (so cleaners of communal areas, for example) and the fact that its website says “staff required” and includes a list which mentions “front of house” and “kitchen staff” and “cashiers”. The disputed advert was for “kitchen assistant” and also for a “Cashier”. Case Number: 3301771/2023 10 of 11

[40]Further, the Claimant argued that there was a reason for me to sceptical about the Respondent’s suggested answer to that point which was that, for one tenant only, and as a special favour to that tenant (which was not Yaki Ya Ltd), it had assisted it with recruitment. Amongst other things, the Claimant said that the dates on which he had seen the job list on the Respondent’s website did not tally up with its comments about when it had assisted that tenant. My conclusions

[41]The advert did not include a company number. While that is not the Respondent’s fault, it is not the Claimant’s fault either. The Respondent did not, at the outset, supply its own company name or company number.

[42]The issue of whether the Claimant telephoned and spoke to anyone about the advertisement is a matter to be decided in due course, if relevant to the claim against the new respondent, Yaki Ya Ltd. However, I am satisfied that the Claimant was not informed by anyone that there was any connection between the advert about which he complains, and the “staff required” section of the Respondent’s website.

[43]That being said, I do not regard it as unreasonable conduct of the litigation for the Claimant to visit the Respondent’s website and place reliance on the contents, in circumstances in which the ET3 itself stated more than once “the respondent do not employ cashiers” and “the respondent does not advertise for cashiers”. The ET3 also asserted some familiarity with employees at the “operators” on its premises, because it confidently asserted that the Claimant had not worked for any of those operators (as well as not working for the Respondent).

[44]I do not criticise the Respondent for not naming Yaki Ya! Ltd any earlier than it did. The Respondent was under no obligation to be aware that Yaki Ya! Ltd had placed the advert (if, indeed, that fact turns out to be true) and under no obligation to inform the Claimant if it did know. It acted reasonably promptly in response to the Tribunal’s orders when it was told to supply further information.

[45]The Claimant’s arguments ultimately failed. However, until there was disclosure and exchange of witness statements, I do not think it was unreasonable for him to suspect that (contrary to the contents of the response) it was possible that either(i) the whole food hall was one business, with different types of food sold from different locations within the building, but all the staff with a common employer and/or that

(ii) there were different businesses operating within the building, but potentially with some staff recruited by, and deployed by, the business who ran the website which he discovered when searching for “Bang Bang Oriental Food Hall”.

[46]A reasonable interpretation of the evidence and witness statements supplied by the Respondent was that it gave strong support to the Respondent’s position. Case Number: 3301771/2023 11 of 11 However, there was no unambiguous confirmation from a third party that it did in fact place the advert.

[47]The Tribunal decided to deal with the identity of who placed the advert as a preliminary issue. The Claimant’s preference was to add additional respondents first. If the Claimant had withdrawn against the existing respondents, he would have been doing so in circumstances in which the stance of any new respondents was unknown to him.

[48]The "without prejudice save as to costs" correspondence did not make an offer to the Claimant which he “failed to beat”. They did not offer him a sum of money, or anything else, other than a guarantee that no costs application would be made if he withdrew. The Respondent was not obliged to make a cash offer, of course. However, in terms of considering whether the Claimant’s refusal of that offer helps to establish that the Claimant has conducted the litigation unreasonably, the offer adds little to the argument that he should simply have withdrawn the claim because – on the Respondent’s case – he ought to have known that it had no reasonable prospects of success.

[49]The Claimant’s own correspondence within the trail was marked “without prejudice” rather than "without prejudice save as to costs", so it would potentially be inadmissible anyway if relied on to show unreasonableness. However, for completeness, this is not a case in which a claimant showed unwillingness to settle unless an unreasonably large offer was made. It was entirely reasonable of the Respondent to refuse the Claimant’s settlement proposal, but his offer of 24 March 2023 at 18.30 was not exceptionally high, and he made a lower offer at 1.27am on 26 March.

[50]In conclusion, while I am satisfied that the Claimant had adequate opportunity, before the hearing, to consider the bundle and the statements, I am satisfied that there was a factual dispute which had to be determined. It is not the case that there was no reasonable prospect of persuading the Tribunal that – contrary to its denials – the Respondent had placed the advert. Further, it was not unreasonable conduct of the litigation to attend the hearing and to seek to persuade the Tribunal to decide the preliminary issue in his favour.

[51]The costs application therefore fails.