Mrs L Day v East and North Hertfordshire NHS Trust: 3306406/2022
EMPLOYMENT TRIBUNALS
Case No 3306406/2022
Between
Mrs L DayClaimantEast and North Hertfordshire NHS TrustRespondent
Before
Employment Judge Shastri- Hurst’sDate 3 October 2024
JUDGMENT
The claim is struck out.
REASONS
The claimant has failed to comply with the unless order dated 19 December 2022, to provide particulars of her claim by 12 January 2023. The claimant complied with the deposit order dated 19 December 2022 and paid £50, albeit late, on 3 January 2023. This money shall be returned to her. The listed hearing on 26-27 June 2023 is Vacated. JUDGMENT[1]The Claimant’s claim for failure to comply with the right to be accompanied under section 10 Employment Relations Act 1999 is unfounded and is dismissed.[2]The Respondent is awarded costs of £14,123.59.[3]The Claimant is to pay the costs awarded to the Respondent within 56 days.
Introduction
[4]The hearing was in person over a period of 2 days. The Claimant provided on the morning of the first day of the hearing an addendum witness statement. The Respondent objected to the Claimant relying on the addendum witness statement. Ms Kerr’s reason for the late disclosure was that she asked for the statement when she was instructed because she thought it would be more helpful to the Employment Tribunal. Mr Rhodes explained that the original witness statements were only exchanged on 12 September 2024 due to the persistent delay of the Claimant. Ms Kerr understood there were difficulties in communicating with the Claimant which led to the delay of the exchange of the first witness statement. Notwithstanding, the Respondent conceded that the Claimant could rely upon the witness statement despite its late disclosure. Mr Rhodes wanted it noted that there was delay in disclosure of the witness statement and the addendum witness statement and the lack of reasonable excuse in respect of the delay of disclosure of the addendum witness statement. Each party provided a chronology. The Respondent provided a cast list, and copies of their 18 September 2024 strike out application.[5]I was further provided with a 122 page agreed bundle, the Claimant’s witness statement, an addendum witness statement from the Claimant, a witness statement from Ms Clarrissa Adupina Nurse team Manager for Outpatients of the Respondent and a witness statement from Mr Paul Woods, Senior HR Advisor of the Respondent. I heard evidence from the Claimant and the two Respondent witnesses.[6]At the start of the hearing, Mr Rhodes indicated that he wished to make an application to strike out the Claimant. I explained to Mr Rhodes that the time it would take to determine the strike out application was probably the same time it would take to determine the claim. I told Mr Rhodes it was a matter for him. Mr Rhodes decided not to make the strike out application but was reserving his position.
Findings of fact
[7]The following findings of fact were made on the balance of probabilities. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant. All references to the bundle are page numbers in square brackets.[8]I found the Claimant’s evidence to be evasive on occasion, the Claimant was asked questions repeatedly which she did not answer. I did not find the Claimant to be a credible witness. I found the Claimant’s portrayal of her case was not entirely consistent with how the Claimant put her claim in her claim form. I found the 2 Respondent witnesses to be credible witnesses of truth whose evidence was consistent with the documentation.[9]The Claimant tested positive for Covid on 7 January 2021. The Claimant then went off sick and developed long covid. The Claimant’s line manager Ms Clarissa Adupina was responsible for handling the long term sickness absence meetings in accordance with the Respondent’s procedure. The Claimant was invited to a number of long term sickness absence meetings before 11 January 2022. The Claimant could only remember one in particular where the UNISON representative attended. UNISON were an accredited union within the Respondent. The Claimant believed that the UNISON representative was not acting independently and so decided after a sickness absence meeting before January 2022 to join the Workers of England Union (‘WEU’). The Claimant’s experience of a formal long term sickness absence meeting before 11 January 2022 was a discussion with her line manager about what was going on in the department, how she was feeling, and was she going to have the covid jab. The Claimant says that there was no HR representative at that sickness absence meeting or any sickness absence meetings before 11 January 2022.[10]By letter dated 11 January 2022, the Claimant was invited to attend a formal long term sickness absence meeting for 19 January 2022. In the letter inviting the Claimant to attend a sickness absence meeting, the letter stated that the purpose of the sickness absence meeting was “I.To understand how your health and well-being is to date II. Review what steps can be taken to support you during this period of absence III. Consider any advice from Health at Work and/or your GP/Specialist IV. Establish when you are likely to return to work and what support can be offered when you are well enough to return to work. As part of our discussion we may consider how your role can be adjusted to help you return to work.” [94][11]The Claimant’s evidence was that she was not sure what the purpose of the meeting was. I find the Claimant was being evasive on this point. It was clear from the letter which the Claimant accepted that she got what the purpose of the meeting was. She had attended previous such meetings, and her evidence was the sickness absence meeting she could remember attending was about discussing how she was feeling. I find this is consistent with the purpose of the meeting set out in the letter dated 11 January 2022.[12]The letter dated 11 January 2022 also stated “You have the right to be supported by a trade union representative or a colleague not acting in a legal capacity. I enclose a second copy of this letter for you to pass onto a representative.” [94] The Claimant was also sent the sickness absence policy [79-93] (‘policy’) with the 11 January 2022 invitation. The Claimant accepted in evidence that the letter was an invite to a sickness absence meeting. The Claimant did not question the use of the long term sickness absence procedure as applying to her at any point.[13]Ms Adupina sent the Claimant the letter dated 11 January 2022 as she had not been able to meet with the Claimant for a sickness absence meeting in December 2021. Ms Adupina had scheduled sickness absence meetings at 4-6 week intervals since July 2021. The normal procedure was that the Claimant would be referred to health at work first to discuss ways that she could be supported by the internal health at work team and after these meetings which were held on the telephone during covid, the Claimant would be invited to attend a sickness absence meeting and given the right for a companion to attend who was either an accredited trade union representative or a work colleague. Ms Adupina was clear in her evidence that as a manager from 2017 that she had never held a sickness absence meeting that resulted in dismissal or any disciplinary action. She did not have the power to meter out any sanction in relation to the sickness absence meetings as it was only a senior manager on a two person panel (in accordance with the policy) who could dismiss. She had no intention of metering out any sanction. I accepted Ms Adupina’s evidence, and this was consistent with the Respondent’s sickness absence policy.[14]By email dated 18 January 2024 11:12, Ms Adupina wrote to the Claimant to inform her of the change to the date of the sickness absence meetings to 26 January 2022. [95] By email dated 24 January 2022 13:52 the Claimant wrote to Ms Adupina stating “ I just to let you know that i will not be requiring Heather to attend my long term sickness meeting on 26th of jan at 11.30 am. I will communicate this to Heather myself. I do have another union rep attending the meeting. So could you send a new link that does not have Unison in the meeting. I will send the link to the union rep. Also i have been advised that an ERAS advisor does not need to be at a long term sickness meeting and i have not had one there before. So i am requesting for an ERAS advisor to not be there.” [97][15]Ms Adupina’s evidence was that ERAS representatives always assist management in the conduct of sickness absence meetings either before the meeting or after the meeting. The only reason why ERAS had been invited to the actual meeting on this occasion was because the facility of video meetings made it much easier for the ERAS representative to attend during covid. I find that prior to 11 January 2022, Ms Adupina had not invited an ERAS representative to attend a sickness absence meeting with the Claimant before.[16]The Claimant did not want the ERAS representative attending because that is what she had been advised to say by her WEU representative. The Claimant said that she had concern about an ERAS attending sickness absence meetings because she understood ERAS to be HR that hires and fires. However, the Claimant did not mention this in any correspondence or her claim form.[17]I do not accept the Claimant’s evidence on this point, and I find that the Claimant did not think that there was a possibility of a sanction or dismissal resulting from the sickness absence meetings because of the presence of ERAS representative. I accept Ms Adupina’s evidence as to why the ERAS representative was invited and I find that the Claimant did not want the ERAS representative at the sickness absence meeting because that is what she had been told to write by her WEU trade union representative.[18]By email dated 26 January 2022 09:53, Ms Adupina wrote to the Claimant to inform her on HR advice that the Claimant could not have her trade union representative from WEU because they were not accredited by the Respondent. [100] Following that email there was correspondence back and forth between the Claimant and Ms Adupina resulting in Ms Adupina sending the Claimant a list of unions that were accredited by the Respondent and cancelling the sickness absence meeting on 31 January 2022 [98]. Ms Adupina wrote a further email on 1 February 2022 clarifying that the Claimant would not be allowed to bring her WEU representative into the meeting.[19]By letter dated 29 March 2022, the Respondent attempted to invite the Claimant to a further sickness absence meeting on 12 April 2022 [108-109]. The Claimant was told again that she had a right to be accompanied at the meeting to be held on 12 April 2022. [108][20]However, by email dated 5 April 2022 [110] the Claimant raised for the first time a grievance about not being permitted to have her chosen union representative present at the sickness absence meeting. The Claimant followed this up with a grievance email to the ERAS representative Ms Imoyin-Omene dated 13 April 2022 [112]. The Claimant admitted that she did not draft the email herself which made reference to section 10 of the Employment Relations Act 1999 and the right to be accompanied to “any meeting which could lead to the termination of your employment, i.e. disciplinary, grievances, welfare meetings, sickness and absence meeting, individual redundancy” [112].[21]Following the Claimant’s raising of a grievance, the 12 April 2022 sickness absence meeting was postponed until the resolution of the grievance. In the end the Claimant did not have a grievance meeting. The sickness absence meeting was resumed for 9 August 2022 at which the Claimant did attend with her trade union representative of choice from WEU.[22]I find at no time did the Claimant raise with the Respondent that she believed that she was attending a disciplinary meeting. The Claimant’s claim form does not refer to a disciplinary meeting. The Claimant did not consider that a sickness absence meeting was a disciplinary meeting. The Claimant gave evidence that the health at work meetings and sickness absence meetings with Ms Adupina were the same in nature, and I accept the Claimant’s evidence on this point. I find that the two sickness absence meetings were meetings to support the Claimant in returning to work. In achieving that, the Claimant and Ms Adupina would need to have a discussion about the past and what the future held regarding the Claimant’s sickness and return to work.[23]The Respondent’s sickness absence policy as applied to the Claimant was the long term sickness absence procedure. The policy states under long term sickness absence “Long-term sickness applies, where absences relate to absences of 28 calendar days or more.” [84][24]Under the heading “Long Term Formal Sickness meetings” [85] it states “The purpose of the Long term Formal Sickness meeting is to: see how you are feeling understand current prognosis, recovery or circumstances find out about any planned treatment or appointments discuss or organise a medical or Health @ Work referral consider the Health @ Work report (with your consent) discuss the latest medical information and fitness to work advice find out if there is anything further we can do to support your return to work and to discuss when you can return to work provide you with an update on the team and any recent changes remind you of the health, wellbeing and emotional support available agree next steps (e.g. frequency of contact, meeting dates, return to work). It would be helpful to have medical advice and/or a Health @ Work report to guide the discussion around any planned return to work, including a phased return or reasonable adjustments to enable you to carry out your role. Before any referral is made you will be asked for your consent. If you do not consent, we may make decisions regarding your health and wellbeing and any return to work with the information available to the Trust.”[25]At page 86 of the bundle, under the heading of “ Final hearing” it states “This meeting will be held by a panel of a senior independent manager, supported by a HR representative. It will only be arranged when we have exhausted the considerations in the previous Long term formal sickness meetings and where there is no likelihood of a return to work within 3 – 6 months because of your ongoing health issues”[26]At Appendix 3 of the policy is a flow chart called an “absence flowchart”. The flowchart refers to all aspects of being absent including short term absences [90]. At the end of the flow chart under the last arrow it states “Long Term Sickness Absence Meetings would be arranged and take place with you every 4-6 weeks, the following should be discussed: o Health at Work advice and guidance. o The need for reasonable adjustments. o Temporary or permanent redeployment/ Ill Health Retirement if recommended by Health at Work. o Review of ongoing employment with the possibility of dismissal if no likelihood of return to work.”[27]At appendix 3 of the policy, headed “absence review discussions” [92] it refers to “As at October 2021, if your absence is Covid related you and your manager will need to meet and agree how we can support your safe attendance and return to work, however, these meetings will not form part of a sickness absence management process. This guidance may change without notice in accordance with national agreements.” [92][28]I accept Mr Wood’s evidence that the reference to covid related meetings not forming part of a sickness absence management process as referring to short term COVID and that long term covid was treated like any long term sickness under the long term sickness absence policy. I also accept Mr Wood’s evidence that the reference to making decisions without consent of the Claimant in the policy was not a sanction. I find that any reference to dismissal in the sickness absence policy was a reference to the final hearing. I find that at no time did the Claimant mention in any of the correspondence she sent about the two meetings that there was a possibility that the meeting of 26 January 2022 or 12 April 2022 meeting were actually final hearings as referred to in the Respondent’s policy. I find that neither meeting was a final hearing.
Relevant Law
[29]Section 10 Employment Relations Act 1999 (‘ErA 1999’) states: “ (1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. [(2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who— (a) is chosen by the worker; and (b) is within subsection (3). (2B) The employer must permit the worker's companion to— (a) address the hearing in order to do any or all of the following— (i) put the worker's case; (ii) sum up that case; (iii) respond on the worker's behalf to any view expressed at the hearing; (b) confer with the worker during the hearing. (2C) Subsection (2B) does not require the employer to permit the worker's companion to— (a) answer questions on behalf of the worker; (b) address the hearing if the worker indicates at it that he does not wish his companion to do so; or (c) use the powers conferred by that subsection in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it.] (3) A person is within this subsection if he is— (a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992, (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or (c) another of the employer's workers. (4) If— (a) a worker has a right under this section to be accompanied at a hearing, (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and (c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker. (5) An alternative time must— (a) be reasonable, and (b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer. (6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer's workers in accordance with a request under subsection (1)(b). (7) Sections 168(3) and (4), 169 and 171 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992 (time off for carrying out trade union duties) shall apply in relation to subsection (6) above as they apply in relation to section 168(1) of that Act.”[30]Section 11 ErA 1999 sets out the available remedy for failure to allow a worker to have a companion: “(1) A worker may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with section [10(2A, (2B)] or (4). (2) A tribunal shall not consider a complaint under this section in relation to a failure or threat unless the complaint is presented—(a) before the end of the period of three months beginning with the date of the failure or threat, 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) of the Employment Rights Act 1996 applies for the purposes of sub-section (2)(a).] (2B) Subsections (2) and (2A) are to be treated as provisions of the Employment Rights Act 1996 for the purposes of [section] 207B of that Act.] (3) Where a tribunal finds that a complaint under this section is wellfounded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.”[31]Section 13(4) sets out the interpretation of what a disciplinary hearing means as referred to in section 10 ErA 1999 “(4) For the purposes of section 10 a disciplinary hearing is a hearing which could result in—(a) the administration of a formal warning to a worker by his employer,(b) the taking of some other action in respect of a worker by his employer, or(c) the confirmation of a warning issued or some other action taken. (5) For the purposes of section 10 a grievance hearing is a hearing which concerns the performance of a duty by an employer in relation to a worker.”[32]In London Underground Ltd v Ferenc-Batchelor & other [2003] ICR 656 which concerned whether an investigatory interview at which an employee could have training imposed which if not adhered to could result in a warning and a conjoined appeal of an investigatory interview at which the employee was given an informal oral warning, and if either such meeting could amount to a disciplinary hearing, the EAT stated “the fact that there may be imposed training, coaching or counselling does not constitute, without more, it seems to us, any sort of disciplinary sanction. It is an order. It may be an instruction but it does not contain any element of penalty or punishment for what has gone on.” [paragraph 26][33]In Heathmill Multimedia ASP Ltd v Jones & Jones [2003] IRLR 857, the decision of Judge JR Reid QC sitting in the EAT suggests that regardless of the fact that the employees were not told the purpose of the meeting and the meeting resulted in their dismissal if the actual purpose of the meeting was to inform the parties that they were being dismissed and the reason for the dismissal was redundancy then that would not engage section 10 ErA 1999 as the meeting was not a disciplinary meeting.[34]The ACAS code of practice on disciplinary and grievance procedures (“the Code”) states in respect of a right to be accompanied to a disciplinary hearing at paragraph 13: “Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in a formal warning being issued or the taking of some other disciplinary action or confirmation of a warning or some other disciplinary action (appeal hearing)”[35]The guidance accompanying the Code (Discipline and Grievances at Work the ACAS guide- July 2020) states “When does the right apply? Workers have the right to be accompanied at disciplinary hearings that could result in: a formal warning being issued to a worker (i.e. a warning that will be placed on the worker’s record) the taking of some other disciplinary action (such as suspension without pay, demotion or dismissal) or other action the confirmation of a warning or some other disciplinary action (i.e. following an appeal hearing). Informal discussions, counselling sessions or disciplinary investigatory meetings do not attract the right to be accompanied. Meetings to investigate a disciplinary issue are not disciplinary hearings. If it becomes apparent that formal disciplinary action may be needed then this should be dealt with at a formal hearing at which the statutory right to be accompanied will apply.” Analysis/ Conclusions[36]There was really only one issue for the Employment Tribunal to decide in this case, which was whether meetings proposed for 26 January 2022 and 12 April 2022 were disciplinary meetings, because if they were, then the Respondent had failed in allowing the Claimant to be accompanied to those meetings, even though they did not happen on those dates. Mr Rhodes accepted this in his submissions and there was no question of whether there had been any failure to allow the Claimant to be accompanied if the 2 meetings in question were disciplinary meetings.[37]Ms Kerr’s submissions suggested that the 2 meetings were disciplinary meetings if there was even a question mark as to whether it could be interpreted that the sickness absence meetings on those 2 dates could result in detriment which the Claimant said included a reference to if you do not consent we may make decisions regarding your health and any return to work” [85] or possible outcome of the final review meeting as “Dismissal” [86] review of ongoing employment with the possibility of dismissal if no likelihood of return to work [90] or Confirm what may happen if you are unable to meet the objectives.[92] However, I do not agree with Ms Kerr’s submission, it seems to me that there would need to be at the very least a warning in any letter inviting an employee to sickness absence meetings that indicated that there was the possibility of a sanction and if the meeting did happen that a sanction was in fact within the powers of the person holding the meeting. I accepted Ms Adupina’s evidence that there was no such possibility. Ms Adupina did not have the power neither did she intend on any basis to exercise any sanction against the Claimant when inviting her to the two meetings.[38]It is clear that the Claimant did not consider that there was any possible sanctions. I did not accept the Claimant’s evidence on this point. As if the Claimant had indeed considered that a sanction was a possibility, she would have mentioned this in her emails. The Claimant had the sickness absence policy. The only mention of a sanction referred to is dismissal in respect of a final review meetings, the Claimant did not suggest that she considered any of the two meetings a final review meeting. Ms Kerr sought to distinguish the case of Heathmill Multimedia v Jones & Jones on the basis in that case there was no discussion about the Claimants being informed of their dismissal and it was like getting a letter of dismissal, however in this case the Claimant did have discussion about next steps, which the sickness absence policy suggested was the possibility of a sanction.[39]Ms Kerr’s submission was that a meeting where there is an investigation into a situation like a sickness absence meetings is different from what happen in Jones and so could have the nature of a disciplinary. Again I find this submission unpersuasive. If ACAS guidance regard a disciplinary investigation meeting as not a disciplinary meeting, I also consider that any kind of investigation meeting is unlikely to have the character of a disciplinary meeting. I consider that whilst Jones is not analogous to the facts I have before me, that decision indicates that a meeting where an employee is dismissed is not enough by itself to convert that meeting into a disciplinary meeting if the reason for the dismissal was nothing to do with conduct. At no point has the Claimant suggested that her conduct for being off work was in question nor was there any suggestion that the sickness absence meetings were a vehicle to reprimand the Claimant for being off work. I did not find that it had such a nature but found that the nature of the meetings were supportive.[40]Even if I were to regard the sickness absence meetings as investigation meetings which I do not, I considered them supportive meetings in nature, I have already found that there was no possibility of any kind of sanction anticipated by Ms Adupina. I do not accept Ms Kerr’s submission that the possibility of a detriment is enough to give a possible sickness absence meetings the character of disciplinary meeting. LU Ltd v Ferenc-Batchelor suggests that you need more than the mere existence of detriment by referring to the imposition of training, coaching and counselling. It may be for many reasons an employee may not want to attend a sickness absence meeting and would regard the attendance of the meeting itself a detriment. That would not convert the sickness absence meeting into a disciplinary meeting. If parliament had wanted to extend the right to other meetings such as sickness absence meetings, then this would be contained in the statute. As it is, the right is extended only to disciplinary meetings and grievance meetings. The facts in this case do not provide for me to stretch the meaning of a disciplinary meeting and I do not.[41]The Claimant’s claim is unfounded and is dismissed. Costs[42]Following judgment, Mr Rhodes made an application for costs on behalf of the Respondent. The Employment Tribunal was provided with a copy of the application as contained in the Respondent’s solicitors’ letter dated 18 September 2024, a costs schedule amounting to a total of £15,997.59 and a costs warning letter dated 10 April 2024. Following a query by Ms Kerr, Mr Rhodes clarified that the application for costs was against the Claimant and was not an application for wasted costs. Mr Rhodes corrected the Schedule of costs which had Mr Rhodes instructing solicitors’ additional hours of attendance of the 2 day hearing handwritten on the schedule of costs. Mr Rhodes clarified that the total figure was less £1 and his instructing solicitors’ costs post April 2024 amounted to £4333.50.[43]The Respondent’s application was made under rule 76(1) (a) and (b), that the Claimant acted unreasonably in the way the proceedings have been conducted or that the claim had no reasonable prospects of success. Mr Rhodes added in his submissions to the costs application dated 18 September 2024 that that the Employment Tribunal made a finding that the Claimant did not think that the sickness absence meetings were disciplinary meetings and did not think she would be dismissed. It was abundantly clear that the meetings did not fall within the statute. The Claimant could not have reasonably believed that they did so. The Claimant would have been aware that her claim did not have prospects as the union were advising her. The Claimant’s union’s mis-advice does not stop costs being awarded. The Claimant was advised in the case management order that she had a weak case. She had two clear indications set out firstly on page 55 of the bundle, when she had a strike out warning. It was obvious that the Claimant’s pleaded case was not going to succeed. The particulars submitted later did not mention that the Claimant was saying that the sickness absence meetings were disciplinary hearings. It was not in the pleadings, or the addendum witness statement nor the original witness statement. There was a key ingredient missing from the evidence . Page 57 of the bundle is the first time that it is alleged by the Claimant’s solicitors that the sickness absence meetings were disciplinary meetings.[44]Mr Rhodes submitted that the costs schedule had been split into pre 24/04/24 costs before the Claimant was sent the written costs warning and even then, the Claimant never had any reasonable prospects of success. Mr Rhodes submitted that given a deposit was made, rule 39 (5) should apply, because it was unreasonable for the Claimant to have pursued the claim.[45]Ms Kerr made submissions in response to Mr Rhodes application and oral submissions which were in summary, that it was unfair, and it asked too much of the Claimant to expect her to explain why she thought the sickness absence meetings could be interpreted as disciplinary meetings, when she was relying on provided information by the Respondent. It is too great high a level. It is not all at the Claimant’s door that it took time for the Claimant’s case to be revealed. When Ms Kerr was asked about the missing information about the hearings being considered disciplinary meetings, Ms Kerr’s response was that she did not have information about how the witness statements were prepared. Ms Kerr asserted that the Respondent is in difficulty in relying on the deposit, it was not paid as the Claimant’s money was returned to her, there was then no deposit order. Also at page 26 of the bundle, EJ Ord directed in the letter dated 16 August 2022 that the Respondent send their request for further and better particulars to the Claimant but the Respondent did not do so.[46]In respect of the Schedule of loss, it is not a matter that has caused additional costs to be incurred, it is a misunderstanding of what the case is about. The prospects of success were never black and white, the claim was not struck out, but the Claimant accepts that the deposit order was not formally appealed. But the Claimant’s case was not a forgone conclusion. The arguments made depended on facts – i.e. Mr Woods and Ms Adupina interpretation of the sickness absence policy. The judgment did not say that the case was completely hopeless. The evidence had to be tested and that includes the documentary evidence. It was worthy of analysis and response. It is not a case where it is appropriate for there to be a costs order. It was not a forgone conclusion. It might have gone another way.[47]Ms Kerr asked if the Employment Tribunal was so minded to make a costs order take evidence of the Claimant’s means.[48]Mr Rhodes responded to Ms Kerr’s submissions to clarify a number of points. Firstly that the Respondent did make requests for further and better particulars and referred to page 32 (paragraph 42) of the bundle where is said “the Respondent had done as Employment Judge Ord had ordered on 16 August 2022, and set out the particulars it required from the Claimant in correspondence to her union representative on 31 August 2022, repeated again on 22 September 2022. Unfortunately, no reply was forthcoming. The claimant instructed solicitors, Tilbrooks, on 19 October 2022, and the respondent again forwarded their requests for further and better particulars to Mr Tilbrook. Again, no response was forthcoming.”[49]Mr Rhodes submitted that rule 39(5) applies as the deposit order was not appealed and thus the Employment Tribunal must consider it unreasonable for the Claimant to have pursued the argument that was the subject of the deposit order. There were two cases, the case in the claim form and the Claimant’s witness statements. Then there is the case advanced by counsel, whose positions were not consistent with the Claimant’s pleadings. With respect of means, the Claimant has been put on notice of costs, she should not be insulated.[50]I heard evidence from the Claimant. In response to the questions of what work the Claimant was doing, what was the Claimant’s income, assets, dependents and whether the Claimant had had applied for any jobs, and anything else the Claimant wanted to tell the Employment Tribunal about her financial situation, the Claimant stated that she had been doing an online training course to work with young people with special needs and mental health issues for the last year. She has so far done level 1-3 and had the ability to go to level 5, which was the level of a teacher. She had not applied for any jobs. She had no income and no assets and relies upon her husband who works for the NHS fixing ambulances. The Claimant has three children aged 24, 20 and 15. The 24 year old is a teaching assistant and the lives with her and her husband as does the 15 year old. The 20 year old is at university and does not live at home. The Claimant is not in receipt of any benefits. The Claimant said that her rent is £600 her husband earnings £1,800 net. She said that the rest of her husband’s salary goes on food and bills. Mr Rhodes referred the Employment Tribunal to page 34. I pointed out that page 34 was at the preliminary hearing where the deposit order was made on 1 December 2022 where the Claimant said that the outgoings (food, electricity, gas) were in total £520-600 pcm, the Claimant’s response was that electricity had gone up since then.[51]The Claimant then told the Employment Tribunal that in April 2024 she did give instructions to her solicitor to shut down the case by email. I asked the Claimant if that was the case why was she here continuing her claim, why did she submit witness statements and a schedule of loss or attend the hearing at all? The Claimant said that she was told by her solicitors that if she did not continue that she would have to pay costs. The Claimant said that she presumed that her solicitor would have to pay the costs.[52]Mr Rhodes responded to the Claimant’s evidence that what the Claimant had said about withdrawal was ultimately a matter between solicitor and client. Mr Rhodes that there was no one at the hearing from Tilbrooks, the Claimant’s solicitors, and the Claimant should pursue her solicitors .[53]Ms Kerr said in response to the Claimant’s evidence that the Employment Tribunal should disregard pre 24/04/24 costs as there was a reason for the Claimant pursuing the case. The costs warning was the Claimant was put on notice and Respondent set out its stall and explained its position. It falls to be applied it is only the draft application for costs and counsel’s fee. The Employment Tribunal should take into account the Claimant’s evidence which indicates that she has very little funds available.[54]Mr Rhodes then concluded that the Employment Tribunal should note when the costs were incurred. For example the review of witness statements was done by Mr Rhodes and that took place in August 2024. Mr Rhodes said that the only thing that the Employment Tribunal should exclude from the costs schedule is the preliminary hearing on 5 March 2022 and the postponed 16 October 2022 hearing. The law on costs[55]In the Employment Tribunals Rules of Procedure, the section on “Costs Orders, Preparation Time Orders And Wasted Costs Orders” is contained in rules 74 to 84 of The Employment Tribunals Rules of Procedure (‘ETR’). Rule 76 deals with when a costs order may or should be made. Rule 76 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; [or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which 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.(3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or reengaged which has been communicated to the respondent not less than 7 days before the hearing; and (b) the postponement or adjournment of that hearing has been caused by the respondent's failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.(4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer's contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party.(5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing.”[56]When an application for costs is made, the Employment Tribunal should follow through three stages to make the decision. The first stage being has one (or more) of the criteria (for costs to potentially be awarded) as set out in the rules been met. In this particular case the Respondent relies upon rule 76(1) (a) and rule 76(1) (b). If there is no criteria in the rules that is met, there can be no order for costs. But if there is criteria that is met, the Employment Tribunal must identify which rule or rules contain the criteria which have been satisfied (and why)? The Employment Tribunal must ask if the rule that is met is one which requires the Tribunal to consider making an award or is it one which says the Tribunal “may” consider making an award. Either way, if the criteria for a costs order are met, that means that the Tribunal has discretion to make an award, but it is not obliged to. Then the Employment Tribunal should identify what are the relevant factors to be taken into consideration in the case, and, taking into account all of the relevant factors (and ignoring anything which is irrelevant), ask itself should an award be made.[57]If the Employment Tribunal decides that an award is to be made, then the question is what is the amount of the award? (And what is the time for payment, etc).[58]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 conduct in question will be relevant to whether the criteria in Rule 76(1)(a) is met and/or whether, in all the circumstances, the Tribunal should exercise its discretion to make a costs order.[59]Costs are the exception rather than the rule (see Yerrakalva v Barnsley [2011] EWCA Civ 1255). Thus the mere fact alone that the criteria under the rules have been met does not establish that the general rule that an Employment Tribunal is to make a costs order in such circumstances.[60]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. The Court of Appeal in McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA suggests that Employment Tribunals should have regard to the nature, gravity and effect’ of a party’s unreasonable conduct. 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. (See Yerrakalva v Barnsley[61]The fact that a costs warning was made, even one which is clear, 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.[62]A relevant factor is what advice did the party have? And from whom? When was the advice given? It can be a double-edged sword that a party has taken legal advice. If they seek to argue that since a lawyer advised them that the claim had merit, it was not unreasonable to pursue it, in all likelihood they will have to waive privilege over the legal advice to make such an argument. On the other hand, the opposing party might seek to argue that the fact that the paying party had legal advice available shows that they ought to have 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. However, there is no requirement 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.[63]Rule 84 ETR states: “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.”[64]As per rule 84, “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). The 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 firstly raise the point and then provide evidence to back up the argument. Analysis and Conclusion[65]I had to consider, rule 76(1) whether the Claimant’s conduct fell within rule 76(1)(a) or whether the requirements of rule 76(1)(b) had been met; if so, whether it was appropriate to exercise my discretion in favour of awarding costs against the Claimant and finally if so, what was the appropriate award?[66]I had regard to the nature, gravity and effect’ of the Claimant’s alleged party’s unreasonable conduct — McPherson v BNP Paribas (London Branch). As set out in the Respondent’s application, the Respondent had incurred significant costs in defending the claim and the Respondent is a publicly funded organisation.[67]I consider that the threshold of unreasonable conduct where there was little and no prospects of success has been reached under rule 76(1) (a) and rule 76(1)(b) in that the claim had no reasonable prospects of success. The Claimant’s conduct is unreasonable where it was clear from 1 December 2022 that her claim had little reasonable prospects of success as a deposit order was made regardless of whether that deposit order still stands or not or whether rule 39(5) is engaged or not, it is a relevant factor and in the same way I take into account the strike out warning on 17 May 2023 that the case had no prospects of success. I found that the Claimant believed the meetings to be sickness absence meetings, which was a finding on the basis of the Claimant’s evidence. I do not accept Ms Kerr’s submission that this is too high a hurdle to impose on the Claimant. It was the Claimant’s case; the burden was upon her to prove that the meetings she complained she was not permitted a companion were disciplinary meetings or grievance meetings.[68]Furthermore, the Claimant was advised throughout by her union and had legal advice at an early stage in the proceedings certainly by October 2022. It was clear the reason why the Claimant did not give evidence it was a disciplinary meeting was because her case as pleaded was always that she was not permitted to have the union representative of choice not that the sickness absence meetings were disciplinary meetings. The Claimant knew that she had no prospects of success, as it had been spelt out to her in the strike out warning. The arguments made by counsel although not completely hopeless are not sufficient to allow a tribunal to ignore the evidence before it, that would not be reasonable.[69]I also considered the Claimant’s schedule of loss that is completely removed from the reality of this case. The Claimant was pursuing an approximate £88k award in her schedule of loss when the only award that the Employment Tribunal has power to make was up to 2 weeks pay. The schedule of loss does not even have the 2 weeks wages in the document. 2 weeks wages of the Claimant amounts to £339.46 x 2 = £678.92. For the Claimant to have submitted such a schedule of loss was completely unreasonable.[70]In considering whether a costs order should be made, I note that costs are the exception not the rule, but I conclude that costs should be awarded based upon the threshold of rule 76(1)(a). The Claimant had legal advice at the earliest stage with a solicitor drafting her witness statement and schedule of loss, both of which the Claimant signed. The Claimant’s witness statement exchanged on 12 September 2024 still did not mention that she believed that the sickness absence meetings were disciplinary meetings. Even the Claimant’s addendum witness statement did not say that the sickness absence meetings were disciplinary meetings, just that the Claimant did not know the purpose of the sickness absence meetings. Evidence that I did not accept. The Claimant was given a cost warning on 10 April 2024 from the Respondent and that indicated that the Claimant’s entire case turned on whether the hearings were disciplinary meetings, yet in the production of the either the first witness statement or the addendum witness statement it did not state explicitly that the Claimant considered that the sickness absence meetings were disciplinary meetings.[71]In Ms Kerr’ submissions, the Claimant requested that I take into consideration her means if the Employment Tribunal was minded to make a costs order. I heard evidence from the Claimant as to her means after deciding to make a cost order. It appeared to me that the Claimant was not working by reason of choice as the Claimant was not looking for work. The Claimant has two earners in her home, her husband who works for the NHS fixing ambulances and a daughter as a teaching assistant. The Claimant’s husband is meeting all their livings costs allowing the Claimant not to work. The Claimant does not get any benefits. The Claimant does not have any assets. The Claimant has an additional qualification to obtain employment but is not looking for work. Bills and food at the preliminary hearing on 1 December 2022 was £350.00 approximately and then upwards of £150 for electricity. I considered the Claimant’s affordability on that basis. However, the Claimant knew the risks of pursuing her case and although she told me that she withdrew her claim with her solicitor in April 2024 she still pursued the claim in providing a witness statement and schedule of loss and indeed attending the hearing and saying nothing about not wanting to pursue the case to the Employment Tribunal until after oral judgment was given. It appears that her solicitors have severely let her down, however, the fact remains it is the Claimant’s case, and she certainly appreciated since April that she should not pursue the case. I consider that the Claimant knew from 1 December 2022 not to pursue the case, and I award costs from that date. I award costs of £14,123.39.[72]Ms Kerr asked for 56 days for the Claimant to pay, the costs and I order the Claimant has 56 days to pay the costs award on the basis it is just and equitable to do so.[73]The Claimant requested written reasons of the claim and costs.