Mr S Constable v Agricultural Harvest Store Installations Ltd: 3307261/2023
EMPLOYMENT TRIBUNALS
Case No 3307261/2023
Between
Mr S ConstableClaimantAgricultural Harvest Store Installations LtdRespondent
Before
Employment Judge GrahamNot represented for claimantDate 5 February 2025
JUDGMENT
[1]The claim is dismissed in full under Rule 47 Employment Tribunal Rules of Procedure 2024.
REASONS
[1]The Claimant filed his ET1 claim form on 25 June 2023 and makes complaints of constructive unfair dismissal and disability discrimination. An ET3 Response denying the claim was filed on 9 August 2023. Case Management Orders were issued on 13 November 2023 for the provision of medical records and a disability impact statement. The Claimant did not fully comply.[2]A first private preliminary hearing for case management was listed to take place on 10 January 2024. That hearing was postponed due to lack of judicial resource.[3]A second private preliminary hearing for case management was listed to take place on 7 March 2024. That hearing was postponed on the application of the Claimant due to the sickness of his legal representative. 10.2 Judgment - rule 61 1 February[4]A third private preliminary hearing for case management was listed to take place on 10 May 2024. That hearing was postponed on the application of the Claimant due to the lack of a legal representative. I understand that the Claimant said that representative had retired.[5]A fourth private preliminary hearing for case management was listed to take place on 11 July 2024. The Claimant applied to postpone that hearing due to lack of a legal representative however this was refused. The matter came before Employment Judge Laidler who clarified the issues and warned the Claimant about his failure to comply with the previous Tribunal directions and indicated that his claim may be struck out if he did not comply.[6]The Respondent at that time had raised concerns about the Claimant’s conduct of proceedings, including repeated failure to copy in the Respondent’s solicitor on correspondence with the Tribunal and compliance with Tribunal directions.[7]The case management summary from that hearing recorded the following in connection with the constructive dismissal and disability discrimination complaint: “The Claimant’s position is that he was fit to return to work from 1 January 2023. The Respondent disputes that as it states that he was still being signed off sick until his resignation with effect from 26 March 2023. The Claimant explained that although he was signed off as sick, he was fit to return to work and his GP had written a letter to that effect. The Judge tried to explain to the Claimant that an employer was unlikely to have an employee back at work when they were still being signed off as sick unless the GP had completed the Fit Note indicating they were fit to return with adjustments. The Claimant needs to take that into consideration.”[8]It would appear that the judge was attempting to assist the Claimant by expressing some of the difficulty he may face with the complaint at a final hearing. Directions were made for the progress of this matter towards a final hearing and the parties were to work together as regards finalising the list of issues. The directions for the provision of a disability impact statement by the Claimant were reissued. The final hearing was listed to take place on 4, 5, 6 and 7 March 2025.[9]On 26 July 2024 the Respondent then applied for a public preliminary hearing to consider a strike out of the claim or a deposit in the alternative, on the basis that the complaints had little or no reasonable prospects of success. The application was also brought on the basis of unreasonable conduct of proceedings by the Claimant due his failure to comply with Tribunal directions in respect of provision of the disability impact statement and also to set out in writing why he resigned. I granted the application solely in respect of a deposit order.[10]A notice of hearing was issued on 8 November 2024 which set out the purpose of the hearing and included directions for the provision of a bundle and also for the Claimant to provide the Respondent with evidence of his 10.2 Judgment - rule 61 2 February means. The Claimant failed to comply with that direction despite numerous emails from the Respondent solicitor asking the Claimant to provide the information I had directed.[11]I understand that the Claimant has since complained that he received notice of the final hearing for somebody else. That is not a matter which I am dealing with today. It is clear that the Claimant received notice of today’s public preliminary hearing as he corresponded with the Tribunal about it and acknowledged by email dated 2 February 2025 that he had not provided evidence of his means. Accordingly, the Claimant was well aware of today’s hearing for almost three months.[12]On 11 November 2024 the Claimant wrote to the Tribunal and indicated that he was confused why the public preliminary hearing had been listed as he was expecting to undertake judicial mediation. That does not appear to me to be the case as the Respondent has indicated that it was not interested in judicial mediation and moreover the Respondent’s application for the public preliminary hearing was copied to the Claimant and the notice of hearing was clear why it had been listed.[13]On 2 February 2025 the Claimant wrote to the Tribunal as I have indicated above. In his email the Claimant said he was expecting to hear about judicial mediation and he said he was unaware of the requirement to provide evidence of his means on the fourth page of the notice of hearing and he complained that there had been no reminder sent to him. The Claimant indicated he had not prepared for the final hearing as he was awaiting clarification of either mediation or the purpose of today’s hearing. The Claimant said that the Respondent kept chasing him for witness statements but he does not have any to exchange. The Claimant said he was unprepared for the hearing and he asked for a postponement and said that he would be working away.[14]The Respondent replied on 3 February 2025 objecting to any further postponements in the matter and listed the attempts it had made to contact the Claimant asking him to provide evidence of his means. This includes emails dated 20 December 2024, and also on 8, 10, 13, 20, 23 and 27 January 2025 as well as a telephone message on 13 January 2025. There appeared to be only one response from the Claimant on 14 January 2025 which the Respondent says did not contain a substantive reply. The Respondent also recorded that the Claimant had failed to complete the Tribunal’s pre-trial checklist.[15]I refused the Claimant’s postponement application of 3 February 2025 noting that he would have been aware of the purpose of today’s hearing and moreover he has had more than sufficient time to make alternative arrangements at work for him to attend. I warned the Claimant that if he failed to attend without a reasonable excuse the hearing may proceed in his absence or his claim may be dismissed under Rule 47.[16]At 8:42am today the Claimant emailed the Tribunal to state that there was a lack of response from the Tribunal about today’s hearing, the Claimant referenced an alleged GDPR breach in July 2024 which I understand to 10.2 Judgment - rule 61 3 February relate to a notice of hearing sent to him, and he attached evidence that he was working away.[17]The hearing commenced at 10am today. The Respondent was in attendance whereas the Claimant was not. I discussed the matter with the Respondent’s counsel as to what it invited me to do in the circumstances. The Respondent indicated that the Tribunal could consider a strike out of the claim under Rule 38 on the basis of the Claimant’s conduct of proceedings and the failure to actively pursue the claim by not complying with directions for today’s hearing and not attending despite my refusal of the postponement request. The Respondent indicated that the Claimant’s correspondence of today’s date was essentially the same information I had been provided with the day before when I had refused the last postponement request.[18]I gave my initial view that a strike out under Rule 38 would not be an appropriate way forward given that the purpose of today’s hearing was listed for consideration of a deposit order on the basis of the complaints having little reasonable prospects of success. I was mindful of the very clear guidance from HHJ Tucker in the case of Kolev v Middlesex University [2023] EAT 173. In that case the court emphasised the well known principle that there must be clarity of purpose when listing a preliminary hearing so that both sides, including a claimant who may be a litigant in person, knows what is to be decided. Specifically it was held: “31. … Lawyers will be, or should be, familiar with the rules of procedure; litigants in person may not be. They may not appreciate the significance of a PH at which a preliminary issue is to be determined. Employment Judges must be astute to ensure that before such a hearing proceeds, particularly one where preliminary issues (as defined above) are determined. a litigant in person has had adequate notice of both the hearing, the issues to be determined, has understood the purpose of the hearing and (if appropriate) has had time to reflect upon the need for evidence.”[19]It did not appear to me to be an appropriate way forward to consider a strike out of the claim which the Claimant did not know would happen, not least because I had previously reviewed the Respondent’s application to list this for a strike out and declined to list it for that purpose, preferring to list it only for consideration of a deposit order instead.[20]I considered that it would be unfair to the Claimant to hear an application he did not know would be made and I felt compelled to follow the guidance in Kolev although I had not raised that specific authority with the Respondent and as such they did not have the opportunity to seek to persuade me otherwise. I did also consider that had the Claimant known that a strike out would be dealt with today he may have made more effort to attend today’s hearing which he had been notice of for almost three months.[21]I indicated to the Respondent that the failure of a party to attend may fall more naturally within Rule 47 which provides: “Non-attendance 10.2 Judgment - rule 61 4 February 47. If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”[22]The Respondent rightly informed me that the new version of the Rules (which I have quoted) has removed the reference to a postponement and it argued that the choices appeared to be to press on and to determine its application for a deposit order, or alternatively to dismiss the claim.[23]I should make it clear that I did not consider that the wording of the new Rule 47 would preclude me from considering a postponement at all as that remains within my general case management powers under Rules 30 and specifically under Rule 32.[24]I was minded that the most appropriate way forward in the first instance would be to give the Claimant a further opportunity to take part today and I adjourned the hearing for thirty minutes and directed the Tribunal to email the Claimant to advise that I had converted this to a hybrid hearing so that he could take part by video. I gave that instruction just after 10:15am, an email and CVP link was sent to the Claimant at 10:20am, and the Claimant was informed that he should join by 10:45am. The Claimant did not do so and no reply was received when I returned to the hearing shortly after 10:47am.[25]I then proceeded to discuss the next steps with the Respondent by firstly satisfying myself that the claim had been fully understood. The Respondent advised me that a draft list of issues had been produced for the final hearing but it still required further replies from the Claimant which had not been provided. I asked about the disability impact statement and was advised that it had been provided late and incomplete but was now resolved. I asked about the other directions and was informed that disclosure had taken place but the Claimant continually failed to disclose the application for a blue badge he had repeatedly been asked to disclose. I asked about witness statements and was advised that the date for exchange had been put back until the outcome of today’s hearing.[26]I went over the chronology of this claim with the Respondent noting the number of postponements and applications for postponements which were usually made the day before a hearing, and also the history of noncompliance or late compliance on the part of the Claimant, and the warning from Employment Judge Laidler in the case management summary of 11 July 2024. I also noted that the purpose of today’s hearing was absolutely clear from the Respondent’s application, the notice of hearing, and the Respondent’s subsequent correspondence with the Claimant. I further noted that the Claimant was well aware that he had to provide evidence of his means as I had directed on 8 November, and it was now 5 February 2025 and the evidence had not been provided. It appeared to me that this failure to comply was wilful, and I noted the extraordinary number of times the Respondent says that it had asked the Claimant for this information. 10.2 Judgment - rule 61 5 February[27]I asked the Respondent what it invited me to do, and it said that it wished to proceed with the application for a deposit order in the first instance, or alternatively a strike out which I clarified meant a dismissal of the claim. I was concerned with the first approach to proceed with the deposit order application for two reasons. The first was because I would only hear what the Respondent had to say about the prospects of success of the claim, I would not have the benefit of what the Claimant had to say.[28]I was also mindful of the very clear guidance from HHJ Tayler in Cox v Adecco Group UK and others [2021] ICR 1307 where at paragraph 30 it was recorded that “There has to be a reasonable attempt at identifying the claims and the issues before considering strike out or making a deposit order.” I was minded that there had been a reasonable attempt at doing so and the Respondent appeared to have done as much as any respondent reasonably could do to try and finalise that list of issues, but nevertheless some gaps remained. Those gaps were within the gift of the Claimant alone to fill and I observed 14 references in the draft list where the Respondent indicated that matters pursued by the Claimant did not appear in the ET1 claim form. I noted that a PCP had yet to be confirmed by the Claimant with respect to one allegation.[29]I formed the view that to proceed with consideration of a deposit order where it was unclear what claims were being pursued and in the absence of a PCP would serve no useful purpose.[30]I was also mindful that I had no information before me as to the Claimant’s means. I had directed that to be provided in very clear terms. In the notice of hearing dated 8 November 2024 I directed: “The claimant is to ensure he has disclosed evidence of his means (assets and income) with respect to his ability to pay a deposit. This should be provided to the respondent for inclusion in the hearing bundles within 14 days (22 November 2024).”[31]As of today’s date that direction has not been complied with and the Claimant by email dated 2 February 2025 confirmed that to be the case. I had already formed the view that the failure to provide that information had been wilful.[32]Had the list of issues been agreed and the evidence as to means been provided then I would have been prepared to deal with the deposit application in the absence of the Claimant. I was not prepared to do so whilst the list remained incomplete, unagreed and without the evidence as to means. The Respondent informed me that the Claimant has confirmed he was working, and I took that into account, however there remained a gap as to his income and expenditure and any assets.[33]I took into account the Overriding Objective of the Tribunal under Rule which provides: “Overriding objective 10.2 Judgment - rule 61 6 February 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,(c) avoiding unnecessary formality and seeking flexibility in the proceedings,(d) avoiding delay, so far as compatible with proper consideration of the issues, and(e) saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction. (4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.”[34]I formed the view that a further postponement would be inappropriate. There had already been considerable delays in this matter which had put the Respondent to expenditure of time and costs, and also the Tribunal as well having to postpone hearings at the last minute which other Tribunal users waiting in the queue could have made use of. I was not minded to grant a further postponement of this matter not least because the Claiamnt had been on notice of today’s hearing for three months, he knew the purpose of the hearing, he had failed to comply my with direction as to his means, and he had been previously warned by Employment Judge Laidler, and finally I had explained to him the possible consequences of nonattendance.[35]In such circumstances I considered that the appropriate way forward, and as a last resort, was to dismiss the claim under Rule 47 due to the Claimant’s non-attendance and the inability to proceed with the deposit order application in his absence. This appeared to me to be in furtherance of the Overriding Objective of the Tribunal to deal with cases in a manner which is fair and just to both parties.[36]I therefore dismissed the claim in full and vacated the final hearing. The Respondent indicated that it intends to make an application for its costs arising out today’s hearing. Those costs currently stand at £3,000. Rule 75 10.2 Judgment - rule 61 7 February provides that the application should be made within 28 days of the date the judgment is sent to the parties. I did not make a decision on costs today and that falls to be decided another day if it is to be pursued. Approved by:[1]The Claimant filed his ET1 claim form on 25 June 2023 and raised complaints of constructive unfair dismissal and disability discrimination. An ET3 Response denying the claim was filed on 9 August 2023. Case Management Orders were issued on 13 November 2023 for the provision of medical records and a disability impact statement. The Claimant did not fully comply.[2]A first private preliminary hearing for case management was listed to take place on 10 January 2024. That hearing was postponed due to lack of judicial resource.[3]On 5 February 2024 the Claimant wrote to the Tribunal without copying in the Respondent and sought to add a complaint of discrimination which was already included.[4]On 27 February 2024 the Tribunal reminded the Claimant of the requirement to copy in the Respondent.[5]A second private preliminary hearing for case management was listed to take place on 7 March 2024. That hearing was postponed on the application of the Claimant on 6 March 2024 due to the sickness of his legal representative.[6]A third private preliminary hearing for case management was listed to take place on 10 May 2024. That hearing was postponed on the application of the Claimant on 8 May 2024 due to the lack of a legal representative. I understand that the Claimant said that his representative had retired.[7]Throughout May, June and July 2024 the Respondent sought to engage with the Claimant about whether he had a new representative. The Respondent says that the Claimant provided a reply which was nonmeaningful, and which it says was unreasonable and disruptive.[8]A fourth private preliminary hearing for case management was listed to take place on 11 July 2024. The Claimant applied to postpone that hearing due to lack of a legal representative however this was refused by me. The matter came before Employment Judge Laidler who clarified the issues and warned the Claimant about his failure to comply with the previous Tribunal directions and indicated that his claim may be struck out if he did not comply.[9]The Respondent had raised concerns at that time about the Claimant’s conduct of proceedings, including repeated failure to copy in the Respondent’s solicitor on correspondence with the Tribunal and compliance with Tribunal directions. The Claimant had already been warned about this before by the Tribunal.[10]The case management summary from that hearing recorded the following in connection with the constructive dismissal and disability discrimination complaint: “The Claimant’s position is that he was fit to return to work from 1 January 2023. The Respondent disputes that as it states that he was still being signed off sick until his resignation with effect from 26 March 2023. The Claimant explained that although he was signed off as sick, he was fit to return to work and his GP had written a letter to that effect. The Judge tried to explain to the Claimant that an employer was unlikely to have an employee back at work when they were still being signed off as sick unless the GP had completed the Fit Note indicating they were fit to return with adjustments. The Claimant needs to take that into consideration.”[11]It would appear that the judge was attempting to assist the Claimant by expressing some of the difficulty he may face with the complaint at a final hearing. Directions were made for the progress of this matter towards a final hearing and the parties were to work together as regards finalising the list of issues. The directions for the provision of a disability impact statement by the Claimant were reissued. The final hearing was listed to take place on 4, 5, 6 and 7 March 2025.[12]On 26 July 2024 the Respondent then applied for a public preliminary hearing to consider a strike out of the claim or a deposit in the alternative, on the basis that the complaints had little or no reasonable prospects of success. The application was also brought on the basis of unreasonable conduct of proceedings by the Claimant due his failure to comply with Tribunal directions in respect of provision of the disability impact statement and also to set out in writing why he resigned. I granted the application to list the matter for a public preliminary hearing to consider whether to order the Claimant to pay a deposit order.[13]A notice of hearing was issued on 8 November 2024 which set out the purpose of the hearing and included directions for the provision of a bundle and also for the Claimant to provide the Respondent with evidence of his means. The Claimant failed to comply with that direction despite numerous emails from the Respondent solicitor asking the Claimant to provide the information I had directed.[14]The Claimant has since complained that he received notice of the final hearing for somebody else. That is a separate issue. It was clear that the Claimant received notice of the public preliminary hearing as he corresponded with the Tribunal about it and acknowledged by email dated 2 February 2025 that he had not provided evidence of his means. Accordingly, the Claimant was well aware of the hearing for almost three months.[15]On 11 November 2024 the Claimant wrote to the Tribunal and indicated that he was confused why the public preliminary hearing had been listed as he was expecting to undertake judicial mediation. There were no grounds for such a mistaken belief as the Respondent had already indicated that it was not interested in judicial mediation and moreover the Respondent’s application for the public preliminary hearing was copied to the Claimant and the notice of hearing was clear why it had been listed.[16]The Claimant continually failed to copy in the Respondent to his correspondence to the Tribunal, including on 11 November 2024 and 6 January 2025.[17]The Respondent attempted to agree a hearing bundle with the Claimant, however he did not engage on this, nor did he engage on emails about the exchange of witness statements, he did not provide disclosure of his blue disability badge application which was a relevant document to have disclosed.[18]On 29 January 2025 the Respondent provided a copy of the preliminary hearing bundle, a copy of the Respondent’s written submissions, and a copy of the Respondent’s witness statement. The Respondent indicated that the Claimant had failed to provide evidence of his means.[19]On 2 February 2025 the Claimant wrote to the Tribunal and repeated he was expecting to hear about judicial mediation and he said he was unaware of the requirement to provide evidence of his means (although it appeared on the fourth page of the notice of hearing) and he complained that there had been no reminder sent to him. The Claimant indicated he had not prepared for the final hearing as he was awaiting clarification of either mediation or the purpose of the hearing. The Claimant said that the Respondent kept chasing him for witness statements but he did not have any to exchange. The Claimant said he was unprepared for the hearing and he asked for a postponement and said that he would be working away.[20]The Respondent replied on 3 February 2025 objecting to any further postponements in the matter and listed the attempts it had made to contact the Claimant asking him to provide evidence of his means. This includes emails dated 20 December 2024, and also on 8, 10, 13, 20, 23 and 27 January 2025 as well as a telephone message on 13 January 2025. There appeared to be only one response from the Claimant on 14 January 2025 which the Respondent says did not contain a substantive reply. The Respondent also recorded that the Claimant had failed to complete the Tribunal’s pre-trial checklist for the final hearing.[21]I refused the Claimant’s postponement application of 3 February 2025 noting that he would have been aware of the purpose of the hearing and moreover he had more than sufficient time to make alternative arrangements at work for him to attend. I warned the Claimant that if he failed to attend without a reasonable excuse the hearing may proceed in his absence or his claim may be dismissed under Rule 47.[22]At 8:42am on 5 February 2025 (the day of the hearing) the Claimant emailed the Tribunal to state that there was a lack of response from the Tribunal about the hearing, the Claimant referenced the alleged GDPR breach in July 2024, and he attached evidence that he was working away. The Respondent says that the Claimant sought to obfuscate by referring to the alleged data protection breach which was entirely distinct from the progress of his claim, and he had unreasonably delayed sending his email until the day of the hearing presumably to try and limit the opportunity for the Respondent to respond.[23]The hearing commenced at 10am. I dismissed the claim under Rule 47 of the Employment Tribunal Rules of Procedure 2024. The reasons for that decision are set out in the judgment dated 5 February 2025. I do not repeat those reasons here save to record that I found the Claimant’s noncompliance with orders of the Tribunal had been wilful.[24]The Respondent sought to apply for an order of costs against the Claimant at the hearing. I directed that be submitted in writing so that the Claimant could respond and provide evidence of his means. Submissions on paper[25]On 7 February 2025 the Respondent made an application for an order for costs against the Claimant to the sum of £3,000 representing counsel fees for the hearing on 5 February 2025. The Respondent says that the Claimant’s conduct had been vexatious in that he had repeatedly referred to the suggestion that mediation should take place rather than having to attend or take part in a substantive preliminary hearing or a hearing. The Respondent says the Claimant’s conduct is indicative of someone pursuing a claim he knows has little or no merit for the ulterior motive of extracting funds from the Respondent. The Respondent places reliance upon the contents of the Claimant’s fit notes to which I have referred already (see paragraph 10), which it says demonstrates the weakness of the claim.[26]The Respondent says that the Claimant’s conduct has been unreasonable and disruptive and he has repeatedly failed to comply with orders, respond to correspondence, to progress his claim and he appears to have unreasonably sought to coerce the Tribunal and the Respondent into progressing the proceedings as he thinks fit, rather than as per the orders of the Employment Tribunal.[27]The Respondent says that the effect of the Claimant’s conduct has been to put the Respondent to significantly more cost than it would have been had he progressed his proceedings properly, and or taken proper stock of the lack of merit of the claim. It is argued that the Claimant’s late, repeated applications for postponements indicate a lack of engagement with his claim and a lack of respect and courtesy for the Respondent and for the Tribunal which is unreasonable.[28]On 26 February 2025 I directed the Claimant to provide his comments on the Respondent’s application for costs and I notified him that the Tribunal may take into account his means when making a decision and he should therefore provide a statement of his means including income, expenditure, and any assets including property and his liabilities. I asked the Claimant to confirm if he consented to the application being dealt with on paper, or if he required an oral hearing. I also advised the Claimant that he may wish to seek independent legal advice.[29]I had not been made aware at the time of sending out the direction that the Claimant had already replied on 10 February 2025 to object to the Respondent’s application for costs. The Claimant says that the Respondent had previously made without prejudice offer to him in excess of the cost order which he says he accepted but was ignored and he continued the claim with his solicitor who eventually retired and he could not find a replacement. The Claimant refers to financial difficulty from not having worked for some time previously, however he provided no evidence at all of his means and liabilities and it is clear that he is now in employment. The Claimant refers to the alleged GDPR breach again, and also suggests he was confused about the purpose of the hearing, he complains of a lack of communication from the Tribunal, and he argued that each side should bear their own costs.[30]Having read the Claimant’s objections I wanted to give the Claimant one further opportunity to provide me with evidence of his means and to confirm if he consented to the issue of cost being decided on the papers. I therefore directed a letter to be sent out to the Claimant dated 24 April 2025 to that effect, and I gave him until 1 May 2025 to respond. No further response was received. I therefore have no evidence of the Claimant’s means before me.
Law
[31]The Employment Tribunal Rules of Procedure 2024 provide: Rule 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 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, … (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.” Rule 76 “The amount of a costs order (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;(b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles...”[32]Rule 82 provides in that in deciding whether to make a costs order (and when determining the value of the order) the Tribunal may have regard to the paying party’s ability to pay.[33]It is clear from the wording of Rule 74 that costs remain discretionary and the word “must” only requires the Tribunal to consider whether to make a such an order in the circumstances identified. It does not follow that it must make that award.[34]The only authority to which I was referred was that of HM Attorney General v Barker [2000] 1 FLR 759 which is authority for the following: “Vexatious is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” [19][35]I was not addressed on the principles below but I will record them as I have taken them into consideration in reaching my decision.[36]The approach to be followed when dealing with an application for costs was helpfully set out in Millin v Capsticks LLP UKEAT/0093/14/RN at paragraph 52. In summary there are three stages, first the tribunal must be of the opinion that the paying party has behaved in a manner referred to in the Rules, but if of that opinion, it does not have to make a costs order. It has still to decide whether, as a second stage, it is “appropriate” to do so. In reaching that decision it may take account of the ability of the paying party to pay. Having decided that there should be a costs order in some amount, the third stage is to determine what that amount should be.[37]There is a degree of overlap between the three stages and it may be appropriate for the Tribunal to consider the same matters under each stage in order that the decision is reached fairly and takes into account all that is relevant to consider. Stage one – has the party behaved in the manner alleged?[38]The fact that a party is a litigant in person is a relevant consideration even at the first stage when determining whether any of the grounds for an order are made out. The EAT has cautioned tribunals not to apply professional standards to lay people and it reminds tribunals that even where the thresholds are met the Tribunal still has a discretion whether to award costs - AQ Ltd v Holden [2012] IRLR 648. Nevertheless, a cost order can be made against an unrepresented party, including where there is no deposit order in place and even in the absence of a costs warning – Vaughan v London Borough of Lewisham UKEAT/0439/04.[39]As regards vexatious, abusive, disruptive or otherwise unreasonable conduct, the term vexatious has been held to mean the bringing of a hopeless claim not with any expectation of recovering compensation, but brought out of spite to harass the employer or for some improper motive – ET Marler Ltd v Robertson [1974] ICR 72. However, being misguided is not the same as vexatious – Holden.[40]In Scott v Russell [2013] the Court of Appeal endorsed a wider definition of vexatious as something which has little or no basis in law that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and it involves an abuse of process of the court, meaning a use of the court process for a purpose which is significantly different from the ordinary and proper use of the court process. The implication from that definition is that it is the effect of the conduct which is key rather than the motivation behind it.[41]There is no definition of abusive or disruptive conduct within the Rules, however in the case of Garnes v London Borough of Lambeth EAT 1237/97, the EAT upheld a costs order on this basis where it had included conduct that was frivolous and involved failure to comply with orders and delays, oppressive behaviour and seeking to ambush the other party in the hearing.[42]As regards unreasonably bringing or conducting proceedings, the word unreasonable should bear its ordinary English meaning and is not to be interpreted as something similar to vexatious – Dyer v Secretary of State for Employment EAT 183/83. Whereas a tribunal should take into account the nature, gravity and effect of a party’s unreasonable conduct, it does not mean that each should be considered separately – Yerrakalva v Barnsley Metropolitan Council and another [2012] ICR 1398. It will be for the tribunal to look at the full picture of the conduct , identifying the specific conduct, what was unreasonable about it, and what effect that conduct had.[43]In Yerrakalva the court clarified that whereas causation is a relevant factor it is not necessary for a tribunal to determine whether there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed, and as indicated above, it is not a requirement for a tribunal to dissect a case in detail and compartmentalise the relevant conduct under separate headings such as nature, gravity and effect. The tribunal’s task will be to look at the whole picture of what happened and to ask whether there has been unreasonable conduct by the paying party in bringing and conducting the case and in doing so to identify the conduct, what was unreasonable about it, and what affect it had. Subsequent cases have again encouraged tribunals not to go beyond an appropriate broad brush first instance assessment or to adopt an overly-analytical approach. Stage two – exercise of the discretion[44]A tribunal has a discretion whether to make an order for costs if a ground is made out, the tribunal is not obliged to do so. The burden rests with the party who is applying for costs to establish that the costs jurisdiction is engaged. Cost orders are fact specific and should be dealt with as summarily as possible therefore issue based costs orders are to be avoided. The Tribunal must take into account all that which appears relevant and disregard that which is not.[45]It remains the case that cost orders in the Tribunal are rare, and they are the exception and not the rule – Yerrakalva.[46]It was held in Gee v Shell UK Limited [2003] IRLR 82: “35. It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that — in sharp distinction from ordinary litigation in the United Kingdom — losing does not ordinarily mean paying the other side’s costs…”[47]Moreover costs are compensatory for the receiving party and are not intended to be punitive on the paying party. Given their compensatory nature that will involve consideration of the loss sustained and these should be limited to those which are reasonably and necessarily incurred.[48]When determining whether to exercise its discretion a Tribunal may have regard to the paying party’s ability to pay. It is unnecessary for the assessment of means to be limited to the date when the order falls to be made, and the fact that the ability to pay is currently limited does not preclude a costs order being made where there is a realistic prospect that the paying party may be able to afford to pay at some point in the future – Vaughan.[49]It may again be appropriate to consider the position of the paying party or whether they had outside support when considering whether to make an order. It may be appropriate to take into account the income of the paying party’s spouse.[50]It may be a relevant factor to consider the extent to which a party has acted under legal advice – Brooks v Nottingham University Hospital NHS Trust EAT 0246/18. The fact that a party is unrepresented may be a relevant factor to consider in the exercise of discretion – Holden, and as indicated above, a tribunal should not judge a litigant in person by the same standards of a professional representative and it was further held: “32… lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in rule 40(3) . Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. 33. This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity…” Stage three – the amount of the order[51]As indicated above, cost orders should be compensatory in nature and not punitive. It is necessary to consider what loss has been caused to the receiving party, and costs should be limited to those reasonably and necessarily incurred – Yarrakalva. Even where a loss is identified, it is still necessary to take into account other factors such as the conduct of the parties, and the tribunal may take into account the means of the paying party. Means includes income, expenditure and capital or assets including property – Shields Automative Ltd v Grieg UKEAT/0024/10 [47].[52]Where means are taken into account the Tribunal should record its findings about the ability to pay a costs order. Where means are not taken into account the Tribunal should explain why – Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06.[53]The Tribunal is not required to limit costs to an amount the paying party can afford to pay – Arrowsmith v Nottingham Trent University [2012] ICR 159 as that party’s circumstances may well improve. The likelihood of an improvement in circumstances may be a relevant factor to consider, and in Vaughan an order was upheld even though the claimant could not presently meet a substantial payment however there was a realistic prospect that she might be able to do so in the future. Whatever order is made would need to be enforced in the county court which can take into account means from time to time.[54]The Tribunal is not obliged to make a precise calculation of what the paying party can afford. The figure should not be entirely arbitrary, and the Tribunal must state on what basis it is awarding any sum of cost and how the decision was reached - Sumukan (UK) Ltd and another v Raghavan EAT 0087/09.
Conclusions
[55]There has been a pattern of behaviour in this case of the Claimant making repeated late applications to postpone, and of repeated non-compliance with Tribunal orders and directions, including with respect to disclosure, agreement of the bundle, the exchange of statements, and also evidence as to his means.[56]The Claimant has shown by his repeated conduct that the only hearing he was willing to take part in was for mediation, he was not prepared to take part in the public preliminary hearing and he has made excuses which do not stand up to scrutiny, in particular his concerns about a data breach where he says he received correspondence for someone else. This had nothing whatsoever to do with the Claimant’s failure to comply with Tribunal orders and directions and his non-attendance at the public preliminary hearing which resulted in the dismissal of his claim in full. From the material before me the Claimant has done very little, if anything at all, to advance his claim towards a final hearing.[57]The failure to comply with Tribunal orders and directions, and the failure to take part in the public preliminary hearing of 5 February 2025, was unreasonable. I have taken into consideration that the Claimant is a litigant in person, however that is no excuse. Lots of litigants in person attend tribunal hearings and advance their claims properly and comply with Tribunal directions. Employment (or Industrial) Tribunals were established so that they could be accessed by non-lawyers. I have already found the Claimant’s non-compliance to be wilful.[58]I do not believe that the Claimant did not understand the purpose of the preliminary hearing on 5 February 2025. The notice of hearing from the Tribunal and the further correspondence from the Tribunal and also the Respondent was abundantly clear. It is entirely disingenuous of the Claimant to suggest that he did not understand.[59]The Claimant routinely failed to copy in the Respondent to correspondence despite reminders that he must do so. This was unreasonable conduct but would not of itself merit an award of costs but it was part of the wider picture and a pattern of unreasonable behaviour which I choose to take into account.[60]I agree with the Respondent that Claimant’s conduct is indicative of someone pursuing a claim he knows has little or no merit for the ulterior motive of extracting funds from the Respondent. It was pursued for an improper purpose, and that was an abuse of the process of the Employment Tribunal. As a result I find that the Claimant has conducted these proceedings unreasonably and vexatiously. In doing so the Claimant has put the Respondent to unnecessary expenditure of legal costs in defending this matter, in dealing with the numerous postponement applications, and unsuccessfully attempting to engage with the Claimant to secure compliance with Tribunal orders and directions.[61]The first stage of the test for the award of costs has been made out under Rules 74(2)(a) and 74(3). I will move on to the second stage below.[62]The next issue is to consider whether to exercise the Tribunal’s discretion to make an award of costs. I again take into account the Claimant was a litigant in person, however I again find that is no excuse for the level of unreasonable and vexatious conduct in this case, and the failure to comply with directions. The Claimant knew full well what he was required to do, he chose not to do so and instead obfuscated in the hope of a settlement or a mediation which were not forthcoming. There was a wilful disregard of Tribunal orders and directions.[63]I cannot take into account the Claimant’s means as he routinely fails to engage on this issue. The Claimant was aware from the preliminary hearing that he should provide evidence of his means and liabilities, he has chosen not to do so. The Claimant was given two opportunities again to do so with respect to the costs application, and again he has failed to do so. The only factor I can take into account is that the Claimant is working.[64]Taking all of the above into account, I exercise my discretion in favour of an award of costs against the Claimant. I will now move on to the third stage below.[65]I must determine the value of the award of costs. I may have regard the Claimant’s means but I cannot do so as the Claimant has failed to engage on this matter as well. The most I know is that the Claimant is working.[66]I take into account the value of the costs sought is modest. The Respondent only seeks its costs of £3,000 which is equivalent to counsel’s fees for the last hearing which the Claimant failed to attend. These costs have been reasonably and necessarily incurred. The Respondent’s costs will have been far in excess of this figure given the length of time the proceedings have endured and the volume of work needed to be done, including unsuccessfully seeking the Claimant’s compliance with Tribunal orders and directions.[67]The sums sought are entirely reasonable and would not be punitive. I award the Respondent the sum of £3,000 to compensate for the legal costs it has incurred due to the Claimant’s repeated unreasonable and vexatious conduct. Approved by: