Mr P Granville v Norfolk and Suffolk NHS Foundation Trust: 3303101/2024
JUDGMENT
[1]The claimant resigned and was not dismissed. The claim for unfair dismissal fails and is dismissed.[2]There was no failure to pay notice pay when the claimant left employment on 10 November 2023. The claim for breach of contract is dismissed.[3]The claim for unlawful deduction of wages was not pursued and is dismissed. Approved by Employment Judge Isabel Manley Date 9 April 2025REASONS
[1]The claimant’s claims for constructive unfair dismissal and breach of contract were unsuccessful at a hearing on 8 and 9 April 2025. Oral judgment was given with a short judgment sent shortly thereafter.[2]Although the respondent’s application for costs was made on 17 April 2025 with the claimant responding on 6 May 2025, the application was not referred to me until late August 2025. The parties have consented to the matter being determined without a hearing and were told to send anything further by 10 October as I informed them that I would determine the application this week.[3]The respondent supplied a bundle of documents for this consideration and a skeleton argument. I also read two short emails from the parties sent in early September. The bundle included a schedule of costs, a costs warning letter of 25 March 2025 and the claimant’s response to that letter of 29 March 2025 (sent by email on 31 March 2025). The claimant also sent a short breakdown of his income and expenditure. Costs – the Rules, the application and the claimant’s response[4]The respondent’s application arises under Rules 73-76 Employment Tribunal Rules of Procedure 2024 (The Rules). The relevant parts of Rule 74 read: “74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been Case No: 3303101/24 10.2 Judgment - rule 61 ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) - “[5]Rule 75 provides that a costs order cannot be made without the proposed paying party being given an opportunity to make representations and Rule 76 provides that a costs order can be made for a sum up to £20,000 without there being a need for a detailed assessment. Finally, Rule 82 reads: “82. 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 paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay”.[6]This involves a three-stage process when determining whether to make an award of costs. First, I must decide whether the claims were misconceived or had no reasonable prospect of success. If I find that to have been the case, I then consider whether to make an award and thirdly, I decide what sum toaward.
[7]The respondent reminds me that costs awards in the employment tribunal are usually considered to be the exception rather than the rule. The claimant similarly says that “costs are not normally awarded”. The claimant also points out in his response that the claims, if they had no reasonable prospect of success, could have been struck out under Rule 28 or 38 or a deposit ordered under Rule 40.[8]The respondent’s application is for its legal costs after its representatives sent the costs warning letter to the claimant on 25 March 2025. The letter appears in the bundle. It is detailed and sets out why the respondent says that the claims were misconceived and had no reasonable prospects of success with reasons for that assessment provided. The claimant was advised to seek independent legal advice and provided with an estimate of costs from the date of the letter to the hearing. He was informed the costs were likely to be around £8000 + VAT.[9]The claimant responded saying he saw no reason to discontinue the claim as “the merits or lack of them” could be decided by the tribunal. He mentioned making an application for preparation time. Case No: 3303101/24 10.2 Judgment - rule 61[10]In summary, the respondent submits that the claimant could not show any breaches of his employment contract for either the constructive unfair dismissal or the breach of contract claim. The claimant’s claim for constructive unfair dismissal was based on his understanding that he had been promised a promotion which did not materialise and that a grievance had not been responded to. His breach of contract claim was for notice pay after he resigned. The respondent submits that none of these claims had any reasonable prospects of success. The costs schedule shows total costs from 25 March up to and including the hearing, with counsel’s fees to be £11,913.[11]The claimant submits that his constructive unfair dismissal claim was “based on his belief that he had been given repeated assurances that an opportunity to apply for advancement was imminent when in fact no such opportunity ever arose”. He makes no submissions about the notice pay claim. The claimant sent a note about his income and expenditure. He stated that he sends the bulk of his income in the UK, assessed at around £2600 per month, to his family and his home in Italy. The expenditure appears to have relatively high sums paid for various loans so that, on the basis of this information, his means to pay is fairly limited.Conclusions
[12]In arriving at my conclusions on this application, I have reminded myself of what I said in the oral judgment by reading my notes (as no written reasons have been requested). I also read my notes of the evidence and, of course, I have also read the documents referred to above.[13]My first task is to decide whether either or both of the claimant’s claims had no reasonable prospect of success and, specifically in this case, whether his pursuing them after he was warned by the letter of 25 March, was unreasonable conduct. I am sure that his claim for notice pay was always bound to fail. The claimant resigned with notice, was on sick leave and informed the respondent when his last day was. Clearly, the respondent did not need to give notice or pay any notice pay.[14]It is more complex to decide whether the claim for constructive unfair dismissal was without merit. The legal tests which need to be applied when determining whether there has been a fundamental breach of contract by the employer which has led to the claimant’s resignation are not always easily understood by litigants in person. However, I am of the view that the claimant must have understood this; if he did not when he brought the claim, when he read the letter of 25 March. I do find that, in pursing that claim to the merits hearing was unreasonable and I therefore move onto the second stage of the decision making.[15]The question now arises as to whether I should make an order for costs. I take into account the suggestion by the claimant that his claim might have been considered for strike out at an earlier stage. But, that does not excuse a unmeritorious claim being brought and pursued after being warned of its Case No: 3303101/24 10.2 Judgment - rule 61 weaknesses. It is always hard for tribunals to strike out claims before the evidence is heard. I also take into account that this is a public sector respondent with public money expended on this tribunal. I have decided, on balance, that this is one of those cases where a costs order is appropriate.[16]I turn lastly to the question of what sum should be awarded. The respondent only asks me to make an award for legal costs after 25 March to the hearing in April. The claimant is a litigant in person and his conduct at the merits hearing and willingness to concede facts was very helpful. I have decided it is appropriate to make an award, given the claimant’s apparent limited means, so that the claimant pays a contribution to the respondent’s costs. I bear in mind the claimant was told costs would be around £8000. I understand that VAT is non recoverable.[17]I order the claimant to pay the sum of £4000 (four thousand pounds) towards the respondent’s legal costs. This is roughly half of the cost he was warned would be incurred by the respondent. Approved by