Ms S Cabrini v Key Horizons Ltd: 3309627/2022

EMPLOYMENT TRIBUNALS

Case No 3309627/2022

Between

Ms S CabriniClaimant

Key Horizons LtdRespondent

Before

Employment Judge Hawksworth

In person for claimant

Miss H Platt (instructed by counsel) for respondent

Date 11 November 2022

JUDGMENT

The application for interim relief under section 128 of the Employment Rights Act 1996 fails and is dismissed. JUDGMENT ON RECONSIDERATION The claimant’s application for reconsideration of the judgment on the claimant’s application for interim relief which was sent to the parties on 19 November 2022 is refused under rule 72(1) of the Employment Tribunal Rules of Procedure 2013.

REASONS

Summary

[1]I heard the claimant’s application for interim relief at a hearing on 10 November 2022. I refused the application and gave reasons at the hearing. The claimant has requested written reasons, those will be sent separately.

[2]On 24 November 2022 the claimant sent an email to the tribunal and the respondent in which she asked for the judgment to be reconsidered. She attached:2.1 a document headed appeal application,

2.2 a document headed application appeal re: application for costs from respondent;

2.3 an evidence contents list; (R) Page 1 of 6

2.4 appeal bundle of evidence (a zip file);

2.5 one email called ‘gmail FW Sage account manager’

[3]I have considered the application under rule 72(1). The rules on reconsideration

[4]Rule 70 of the Employment Tribunal Rules of Procedure 2016 says: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[5]The requirement that a judgment may only be reconsidered where reconsideration is necessary in the interests of justice reflects the public interest in the finality of litigation.

[6]Rule 71 says that an application for reconsideration must be made in writing within 14 days of the date on which the original decision was sent to the parties. Rule 72 explains the process to be followed on an application for reconsideration under rule 71. It says: “(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. “(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as (R) Page 2 of 6 the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.” Conclusions on the claimant’s application

[7]The claimant’s application for reconsideration was made within the required 14 days of the date on which the judgment was sent to the parties. The claimant complied with rule 71 in respect of the judgment.

[8]Rule 72(1) requires me to consider whether there is any reasonable prospect of the original decision being varied or revoked. I need to decide whether there is any reasonable prospect of a conclusion that variation or revocation of the original decision is necessary in the interests of justice. I have considered the claimant’s application with this test in mind.

[9]The claimant’s application document is described as an appeal application, but I have treated it and the accompanying documents as an application for reconsideration.

[10]The claimant relies on five points in her application. I have considered these in turn below. The claimant’s appeal documents are lengthy; I have considered them in full but in the interests of proportionality I have not responded in detail here to every matter raised by the claimant.

[11]Point 1: the claimant says the hearing was biased towards the respondent,11.1 The claimant said that it was clear that I know Miss Platt, the respondent’s barrister, and she had the feeling there had been some communication between us before the hearing. I do not know Miss Platt in a personal capacity. I had no exchange or communication with Miss Platt before the hearing began. No dates were discussed before the hearing.

11.2 I did not have any exchange with Miss Platt or anyone on the respondent’s side during any break, as the claimant suggests, or at any point during the day when the claimant was not present. Shortly before the first break, I thought I heard another voice from the claimant’s room. During the break I asked the clerk to check with the claimant whether she had anyone with her. This was a question raised by me, not by or on behalf of the respondent. It was asked for the purpose of the tribunal’s record of the hearing, which notes (R) Page 3 of 6 everyone who attends and which is kept by the clerk. The claimant confirmed that she was alone.

11.3 There were brief pauses during the hearing to allow Miss Platt to consult with her clients. This is not, as the claimant suggests, procedurally incorrect.

11.4 At the end of the hearing, Miss Platt made a costs application. I said that the application should be made in writing so that the claimant could provide any information on her ability to pay, and I would consider the costs application after that. I did not, as the claimant says, advise Miss Platt to submit a costs application and I did not say that I would ‘honour’ it.

[12]The claimant says that she was disadvantaged by not being able to afford legal representation. I took into account in the conduct of the hearing the fact that the claimant did not have legal representation. In accordance with the overriding objective in rule 2 of the tribunal’s rules, I sought to ensure, so far as practicable, that the parties were on an equal footing. For example:12.1 The claimant sent her bundle for the hearing in 88 separate documents attached to 4 separate emails. Before the hearing I consolidated the documents to make one pdf bundle that could be used at the hearing.

12.2 At the start of the hearing I explained in detail the test for interim relief and the law on protected disclosures and protected disclosure dismissal as set out in sections 43B and 103A of the Employment Rights Act 1996.

12.3 I suggested to the claimant that during a break I was taking for reading, she could read the respondent’s skeleton argument, and focus on the table in the respondent’s skeleton argument, as this set out what the respondent understood from her claim form to be the alleged protected disclosures. I said I would find it helpful to hear from her what protected disclosures she says she made, and why she said they were protected disclosures, that is what were the relevant failures she disclosed information about, were they in a document or meeting, and on what basis does she say they were disclosures made in the public interest. (In her comments to me at the hearing, the claimant helpfully went through each of the disclosures in this way, and also explained that she relies on another disclosure (disclosure 8) which was not in the table.)

12.4 I told the claimant and Miss Platt that they could have up to one hour each to make their comments to me, but that they did not need to use all of this time. Both took around 30 minutes.

12.5 I explained my case management orders to the parties at the hearing. In the written document, as the claimant is a litigant in person, I included a link to a webpage with information on preparing a schedule of loss, and summary guidance on preparing questions (R) Page 4 of 6 to witnesses (based on the presidential guidance).

[13]Points 2 and 3: the claimant says that available evidence was overlooked, and she would have had more evidence if the respondent had replied to her data subject access request:13.1 In making my decision on the claimant’s application for interim relief, I had to make an assessment on the evidence which the parties had put before me. I was not able to consider what other evidence might have been available if the respondent had replied to the claimant’s subject access request. I explained my reasons for my assessment of the evidence which was before me in the reasons I gave at the hearing.

13.2 I explained to the claimant at the hearing that the employment tribunal does not have jurisdiction to deal with breaches of the Data Protection Act – it is not a type of claim that employment tribunals have the power to decide.

[14]Point 4: the claimant says that missing evidence was not considered, and she lists new evidence she has identified. At the hearing I made a summary assessment of the evidence, considered the parties’ comments, applied the relevant legal principles and reached my conclusions. None of the claimant’s assertions about the evidence I considered or about new evidence she has found provide a basis for reconsideration of the judgment.

[15]Point 5: the claimant says correct procedures were not followed in the hearing. She does not give details of what procedures she is referring to.15.1 The claimant also says I made a mistake when referring to the respondent’s reliance on ‘references etc’ as a reason for dismissal. That was a reference to paragraphs 4, 6 and 7 in the dismissal letter, in which the respondent said that the claimant had failed to provide evidence about her educational and professional qualifications, had failed to disclose her surname history and address history, and had provided false information about her employment status and a false CV.

15.2 I did not, as the claimant suggests, decide the claimant’s application before the hearing.

[16]In summary, there must be some basis for reconsideration; the reconsideration process is not an opportunity for a party to provide further evidence or to seek to reopen matters which the tribunal has already determined. As I explained to the claimant at the hearing, my refusal of her interim relief application did not mean that I think her claim cannot succeed or that it is likely it will fail. It only meant that on my summary assessment of the evidence at the hearing on 10 November, it did not (R) Page 5 of 6 appear to me that I could say that the claimant’s is a case which has a ‘pretty good chance of success’.

[17]The fact that the claimant’s interim relief application has not succeeded also does not mean that her evidence will not now be considered. The points the claimant raises in her reconsideration application can be considered at the final hearing of her claim. However, the application for reconsideration does not raise any error of law, any procedural error or any other matter which would make reconsideration of the interim relief judgment necessary in the interests of justice.

[18]I have concluded in the claimant’s case that there is no reasonable prospect of variation or revocation of the original decision, and the application for reconsideration is therefore refused under rule 72(1). JUDGMENT on the claimant’s application for interim relief having been sent to the parties on 19 November 2022 and reasons having been requested by the claimant in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:

[1]I have decided that the application for interim relief has not succeeded. Just to be very clear, this does not mean that the claim stops. The claim itself will carry on, to be decided at the main hearing. It also does not mean that I do not think the claim can succeed, or that I think it is likely to fail. My decision only means that, on my summary assessment today, it does not appear to me that this is a case where I can say the claimant has a pretty good chance of succeeding with her complaint of whistleblowing dismissal. That is the test that I have to apply when considering the application for interim relief.

[2]In summary, there are two main reasons why I have reached this decision. First, at the moment, there is a lack of clarity about what was said in the alleged disclosures. This makes it difficult for me to make an assessment that there is a pretty good chance of the disclosures being found to be protected disclosures. This is an essential element for a whistleblowing dismissal claim to succeed.

[3]Secondly, there is an alternative explanation for dismissal that has been put forward by the respondent. I have decided that I cannot say, even if the tribunal finds that the claimant made one or more protected disclosure, that there is a pretty good chance that the tribunal will go on to find that, despite 1 of 9 what is said in the dismissal letter, a whistleblowing disclosure was the sole or principal reason for dismissal.

[4]Those are my summary reasons. I will go into a bit more detail now, starting with an introduction about the claim and the hearing today.

Introduction

[5]The respondent is a provider of care home services. The claimant worked for the respondent as a managing director from 31 January 2022 until she was dismissed on 14 July 2022. She presented her ET1 claim form four days later, on 18 July 2022. She says she was unfairly dismissed contrary to section 103A of the Employment Rights Act 1996 and she has made an application for interim relief.

[6]The purpose of today’s hearing is to determine the interim relief application. The hearing was originally listed for 5 August 2022. That hearing was postponed and rescheduled for today, as explained in the notice of hearing that was sent to the parties on 27 August 2022.

[7]Before the hearing today, the claimant sent 88 documents which I consolidated into one PDF document. The pdf pack with the claimant’s documents has 244 pages. The claimant also sent a witness statement with 29 pages (I have the updated version of 3 November 2022) and a 10 page application for interim relief.

[8]The respondent sent a separate, paginated bundle to the tribunal and the claimant. It has 250 pages (there was some overlap between the respondent’s and the claimant’s bundles). There is also a witness statement by Mr Key and another by Mrs Key. The witness statements had 17 pages in total.

[9]This morning Ms Platt sent the tribunal and the claimant a skeleton argument (5 pages) and a pack of 12 case reports (93 pages).

[10]At the start of the hearing I explained the test that I have to apply when I am considering whether to grant interim relief. I explained the legal principles in respect of protected disclosures and in respect of unfair dismissal for making protected disclosures.

[11]After that we took a break of one hour for reading. I suggested to Ms Cabrini that, during the break, she could read the respondent’s skeleton argument. I asked her to focus, in her submissions, on what she said were the protected disclosures she had made, and I said that she could do this by reference to a table of alleged disclosures in the respondent’s skeleton argument. The table was based on what the respondent understood from the claimant’s claim form to be the alleged protected disclosures. I said I would find that helpful because the alleged protected disclosures are one of the areas that would be the focus for me today. I said it would be helpful for me to know from Ms Cabrini what were the disclosures she said she made, what were the relevant failures that she disclosed information about, whether she made her disclosures in a document or verbally, and on what basis she says her disclosures were made in the public interest. 2 of 9

[12]When we started again, I heard submissions from Ms Cabrini first, and she very helpfully focused on the areas I had suggested. I then heard from Miss Platt. Finally, Ms Cabrini had an opportunity to reply. I did not hear any witness evidence today. Ms Cabrini’s submissions

[13]Ms Cabrini’s case is that she made eight protected disclosures. I refer to them by the numbering used in the table in Miss Platt’s skeleton argument, which had 7 alleged disclosures. I have referred to the additional disclosure relied on by Ms Cabrini as disclosure 8.

[14]Ms Cabrini said that disclosure 4, which is about accounting irregularities, was probably not a protected disclosure as it was not made in the public interest. Ms Cabrini explained, in respect of each of the other disclosures, how they were made, why she believed them to be in the public interest, and what relevant failure she says she disclosed information about.

[15]She said that disclosure 1 was made in an email of 13 March 2022. I have not been able to find a copy of that email in either bundle.

[16]She said that disclosures 2, 3 and 6 were made in written weekly reports. Copies of those reports were not available and were not included in the bundles. Disclosures were also said to have been made in meetings on 10 and 30 May 2022, although there were no minutes of those meetings in the bundles.

[17]Ms Cabrini said that disclosure 5 was in made her first grievance (12 June 2022), that was in the bundle. The grievance started at page 75 of the respondent’s bundle and at page 96 there was a reference to non-payment of pension contributions and non-payments to HMRC.

[18]Ms Cabrini said that disclosure 7, which was a disclosure of financial irregularities, was made in her grievance dated 8 July 2022. That was in the respondent’s bundle at page 163.

[19]She said that she made disclosure 8, about government grants in weekly reports and in the meetings of 10 and 30 May 2022.

[20]Ms Cabrini said that these disclosures were the reason for her dismissal. Miss Platt’s submissions

[21]The respondent’s case was that the claimant’s disclosures do not meet the requirements to be protected disclosures. Disclosure 1 was not a matter of public interest. Disclosure 2 had not been made at all. Disclosure 3 was not made by the claimant. Disclosure 4 was not in the public interest. The respondent also denied that disclosure 5 had been made at all. Disclosure 6 had taken place after the claimant was dismissed. It was unclear which grievance disclosure 7 referred to, and it was difficult to see how it had been made in the public interest. Disclosure 8 had not been mentioned as a disclosure in the grounds of complaint.

[22]Miss Platt said that even if there was a protected disclosure, the claimant 3 of 9 could not show any causal link between a disclosure and the dismissal. She pointed to the dismissal letter which set out 20 matters relating to the claimant’s conduct which the respondent said were the reasons for dismissal. She said that none of these related to the claimant’s alleged disclosures.

The law

[23]The statutory provisions relating to interim relief are set out in sections 128 and 129 of the Employment Rights Act 1996. Section 128(1) says (as far as is relevant to this case): “128 Interim relief pending determination of complaint (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and - (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in - i) …section 103A… may apply to the tribunal for interim relief.”

[24]Section 129 sets out the procedure for hearings of interim relief applications. It says: “129 Procedure on hearing of application and making of order (1) This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find – (a) that the reason (of if more than one the principal reason) for the dismissal is one of those specified in – i) …section 103A…”

[25]Sections 43A and 43B of the Employment Rights Act explain which disclosures are protected disclosures: “43A Meaning of “protected disclosure” In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— 4 of 9 (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed… 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith— (a) to his employer…”

[26]Section 103A says: “103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[27]The interim relief application is made under sections 128 and 129 of the Employment Rights Act. The test for me is whether the claimant’s claim of whistleblowing dismissal is likely to succeed. Likely here means that the claimant has ‘a pretty good chance’ of success at the full hearing (Taplin v C Shippam Limited

[1978] IRLR 450

(EAT), Dandpat v University of Bath and another

UKEAT/0408/09

[28]It is important to emphasise that this is a high threshold. It is a significantly higher degree of likelihood than if I were to consider whether it was ‘more likely than not’ that the claim would succeed (Wollenberg v Global Gaming Ventures (Leeds) Ltd EAT 0053/18). And I have to consider whether the claimant has a pretty good chance of success on all of the required elements of the claim, that is all of the points that will have to be met in order for the claim to succeed.

[29]The essential elements for a complaint of whistleblowing dismissal to succeed are the following. As to whether there was a qualifying disclosure, such that it could then be a protected disclosure (because the disclosures were made to the employer), the questions I have to consider are as 5 of 9 follows. First, was there a disclosure of information. Second, did the claimant believe that the disclosure tended to show a relevant failure, that is one of those six types of wrongdoing that are set out in section 43B. Third, if she did believe that, was the claimant’s belief reasonable. Questions four and five relate to the public interest: did the claimant believe that the disclosure of information was made in the public interest and, if so, was her belief reasonable.

[30]If those elements are met such that it seems to me that there is a pretty good chance of the claimant of establishing that she made one or more protected disclosure, I also need to consider whether there is a pretty good chance of success in showing that the protected disclosure or disclosures were the sole or principal reason for the dismissal. This would mean that there would be a pretty good chance of showing that the dismissal was automatically unfair.

[31]Those are the legal tests that I have to apply. I have to make an ‘expeditious summary assessment’, doing the best I can with the untested evidence advanced by each party, of whether the claimant is likely to succeed (London City Airport Ltd v Chacko

[2013] IRLR 610

(EAT).

Conclusions

[32]Ms Cabrini is entitled to apply for interim relief and made her application in line with the required procedure.

[33]Essentially, what I have to do today is carry out a summary assessment as to how the claim looks on the material that I have been given. I have, as I say, to consider the high threshold of whether the claim has a ‘pretty good chance’ of success. There are policy reasons for this high threshold, as the consequences that follow for an employer if interim relief is granted are serious.

[34]I have not heard any oral evidence today, we have not had any cross examination or testing of witness evidence, and I am not undertaking a fact finding exercise. What I have to do is to carry out a broad assessment of the information that I have been shown, with careful consideration of the submissions that I have heard from the parties. What I am setting out now is the gist of my reasoning rather than very detailed reasons, this is appropriate where I am looking at an interim matter rather than a final judgment.

[35]I will now come back to those questions that I mentioned earlier that are the elements required to establish a qualifying disclosure. In respect of the first three, I need to consider whether there was a disclosure of information which Ms Cabrini believed tended to show a relevant failure, and if so, whether her belief was reasonable.

[36]I have not found this straightforward, primarily because I have not seen many of the documents which Ms Cabrini relies on as being written disclosures, and I have not seen evidence supporting what she says was said in verbal disclosures. The claimant’s grievances were in the bundle but none of the other documents which are said to contain the disclosures were 6 of 9 available to me today.

[37]This is important, because when the tribunal at the full hearing is looking at whether a document or conversation contained a protected disclosure, it will focus on the actual words used, to assess whether the various elements of the test are met. It will consider carefully which of the relevant failures is relied on. If the claimant says that there has been a failure to comply with a legal obligation, the tribunal will need to understand what legal obligation she says has not been complied with, and in what way she says that the employer failed to comply with it. If she says she has disclosed information that tends to show that a criminal offence has been committed, the tribunal will need to know what criminal offence the disclosure concerns. At this stage, I simply do not have enough information to even get an idea of how that detailed assessment would go. I do not have enough information to conclude that the claimant has a pretty good chance of succeeding in showing that she made disclosures of information about a relevant failure.

[38]In respect of the grievances, copies of which are in the bundle, it is quite possible that the tribunal could conclude that in one or more of the grievances the claimant disclosed information that she believed tended to show one of the relevant failures, for example, that the respondent had failed to comply with a GDPR obligation, or an obligation to HMRC, or an employee pension obligation. (A protected disclosure can include a disclosure of information about which an employer is already aware (section 43L(3)). And it is also quite possible that the tribunal could conclude that the claimant’s disclosures about the conduct of one of the respondent’s employees amounted to information which tended to show that fraud, a criminal offence, had been committed. However, while these are possible outcomes, it does not appear to me on the material before me today that I have sufficient clarity on the nature of the information allegedly disclosed to be able to say that they are ‘likely’ outcomes, in the sense that the prospects of success reach the threshold that they are required to reach for me to make an award of interim relief.

[39]I have reached a similar conclusion on the second part of the test for qualifying disclosure, that is the questions of whether Ms Cabrini believed that a disclosure was made in the public interest and, if she did, whether that belief was reasonable. Again, I think it is quite possible that a tribunal could determine that it was reasonable for the claimant to believe that a disclosure about fraud at a company which provided care to vulnerable people, and where that care was paid for by a local authority, was a matter of public interest. Similarly, a failure to pay tax to HMRC can often reasonably be regarded as a matter of public interest. But the lack of clarity about what was actually said and about the basis on which the disclosures were said to be qualifying disclosures (for example, about which legal obligation had been breached) means that my assessment is that this point also does not reach the threshold required to grant interim relief.

[40]So, I have concluded that while there may be some prospect of Ms Cabrini establishing that she made one or more protected disclosure, my assessment of the evidence at this stage is that the prospect is not sufficiently high to meet the required threshold of the interim relief test. 7 of 9

[41]Finally, if I had concluded that there was a pretty good chance of the claimant establishing that she made one or more protected disclosure, I would have to consider whether there was also a pretty good chance of her establishing that that a protected disclosure was the sole or principal reason for the dismissal. That requires there to be a causal link between a disclosure and the dismissal. The tribunal would have to decide that one or more protected disclosure was the reason for the dismissal.

[42]This is not a case where the respondent has not put forward an alternative reason for dismissal; the respondent said matters of conduct or capability, or some other substantial reason, gave it grounds for dismissal. The respondent said it had identified conduct issues and had discovered information from which it thought, for example, that the claimant had provided references etc that were not genuine. In the dismissal letter the respondent listed 20 items which were said to amount to conduct issues. None of these relate to the alleged disclosures. I am not today making any findings about whether the alleged conduct issues happened or not. However, the alternative explanation for dismissal which the respondent has put forward is something which the tribunal hearing the final hearing may accept.

[43]Again, it may be that the tribunal does not accept that evidence at the final hearing and concludes that the real reason for the dismissal was not the matters set out in the letter, but was one or more protected disclosure. However, having undertaken an assessment on the basis of the information I have today, it seems to me that the chances of the claimant succeeding in showing that the sole or principal reason for dismissal was a protected disclosure do not meet the required level of likelihood.

[44]I have concluded that the test to award interim relief is not met in relation to either the question of whether the disclosures were protected, or the reason for dismissal. For these reasons, the application for interim relief cannot succeed.

[45]Postscripts – I have added these notes at the time of providing written reasons:a. In paragraph 42 I refer to ‘references etc’. As I explained in a reconsideration judgment sent to the parties on 20 December 2022, by this I was referring to paragraphs 4, 6 and 7 in the dismissal letter, in which the respondent said that the claimant had failed to provide evidence about her educational and professional qualifications, had failed to disclose her surname history and address history, and had provided false information about her employment status and a false CV.

b. At the hearing, I did not read out the statutory provisions set out in paragraphs 23 to 26 above. Instead, at the start of the hearing and in the reasons I gave at the hearing, I set out the summary of the legal principles which is at paragraphs 27 to 31 above. I have also added in these written reasons the names of the cases to which I referred in paragraphs 27 to 31. 8 of 9

c. I gave my judgment and reasons at the end of the hearing. The written judgment was sent to the parties on 19 November 2022. Ms Cabrini sent an email on 10 November 2022 after the hearing ended, requesting written reasons. I apologise for the delay in providing these written reasons. Ms Cabrini’s request was not sent to me by the tribunal administration until 3 December 2022. The typing up of my recorded reasons, done by the tribunal administration, took a further 4 weeks because of high volumes of cases and the Christmas break.

Introduction

[1]This section of the reasons gives a brief outline of the history of the claim, as a background to this costs judgment. Page numbers in these reasons are references to the bundle prepared for the costs hearing.

[2]The claimant was employed as the managing director of the respondent, a provider of home care services, for around six months from 31 January 2022 until her dismissal on 14 July 2022. Early conciliation started and ended on 15 July 2022. The claim form was presented on 18 July 2022. The claimant made complaints of whistleblowing detriment and dismissal, and for notice pay.

[3]The respondent defended the claim and presented its ET3 on 16 August 2022.

[4]The claimant’s claim included an application for interim relief. The interim relief hearing was due to take place by video on 5 August 2022. The hearing was postponed on the claimant’s application. It was rescheduled and took place by video on 10 November 2022.

[5]At the rescheduled hearing I refused the application for interim relief. I arranged dates for the final hearing and made case management orders for the parties to prepare for the final hearing. The case management orders were sent to the parties on 19 November 2022 (page 49). I refused the (RJR) Page 1 of 18 claimant’s application for reconsideration of the judgment on interim relief (page 61).

[6]In her application on 4 August 2022 to postpone the hearing on 5 August 2022, the claimant said that her mother had passed away overnight (page 116). When granting the claimant’s request for a postponement of that hearing, Employment Judge Tynan directed the claimant to provide a copy of her mother’s death certificate.

[7]The claimant failed to comply with the direction and with two subsequent orders to provide a copy of the certificate. This led to the issue of an unless order which was sent to the parties on 20 December 2022 (page 67). I refused the claimant’s application to vary the order. The claimant failed to comply with the unless order. On 5 March 2022 the tribunal wrote to the parties to say that the claim had been dismissed because of the failure to comply with the unless order (page 81). I refused the claimant’s application to set aside the unless order (page 82).

[8]The claimant made appeals to the Employment Appeal Tribunal. On 20 October 2023 the EAT wrote to the parties to say that HHJ Tayler had decided that the claimant’s notices of appeal disclosed no reasonable grounds for appeal and that no further action would be taken on the notices of appeal (page 95). The costs hearing

[9]In the course of proceedings, the respondent made two applications for costs against the claimant. The applications were due to be decided at a hearing, but instead I have decided them on the papers. This section of the reasons explains how this change came about.

[10]After the claim was dismissed, the respondent’s costs applications had yet to be decided. On 7 December 2023 the tribunal wrote to the parties on my direction inviting the parties to make any further comments on the costs applications, and to say whether they thought a costs hearing was necessary.

[11]The claimant asked for the costs applications to be decided at a hearing. She said she felt disadvantaged as a litigant in person and wanted to seek representation (page 176).

[12]The respondent’s preference was for the applications to be decided on the papers, in the interests of proportionality and saving expense (page 178).

[13]I decided that the costs applications should be considered at a hearing to allow the claimant the opportunity to respond to the applications in the way she requested. I decided that the costs hearing should be by video, in line with presidential guidance issued on 31 March 2022 on the format of hearings. The notice of hearing was sent to the parties on 23 January 2024 and the hearing was to take place on 22 March 2024 (page 100). The notice (RJR) Page 2 of 18 of hearing included case management orders for the parties to prepare a bundle and exchange witness statements.

[14]On 15 February 2024 the claimant wrote to the tribunal to ask for the hearing to take place in person rather than by video (page 187). She said she wanted her supporters around her for moral support, and she felt she was at a disadvantage at the previous video hearing. I granted the claimant’s application and the tribunal wrote to the parties about this on 28 February 2024 (page 103). At the same time, I made an order for exchange of any written submissions ahead of the costs hearing. I also refused an application by the claimant for disclosure of the respondent’s solicitors invoices; I decided it would be disproportionate to require this in circumstances where the respondent had already provided a detailed costs schedule certified by a partner of the respondent’s solicitor’s firm.

[15]On 13 March 2024 the claimant made an application to postpone the costs hearing. The application was made in emails sent at 12.41, 13.17, 16.51, 17.03 and 21.35. The application was made on the grounds of ill health and enclosed a letter from the claimant’s doctor. In her various emails, the claimant also enclosed a rebuttal statement and other evidence and asked for these to be considered if the costs hearing went ahead in her absence. (The claimant’s evidence is listed below in the section headed ‘claimant’s response to the costs applications.)

[16]In an email at 16.34 on 13 March 2024 the respondent objected to the postponement of the costs hearing. The respondent said that the claimant’s doctor’s letter did not comply with the Presidential Guidance on postponements for health reasons, and that there was reason to doubt the veracity of the letter. The respondent said that it would not be in line with the overriding objective in rule 2 to postpone the hearing given that it had been listed to consider applications to recover costs incurred due to the claimant’s conduct, and as it was over a year since the claim had been dismissed. The respondent suggested that if the tribunal decided not to proceed in the claimant’s absence, an alternative would be to dispense with the hearing and decide the applications on the papers.

[17]In response to the respondent’s email, the claimant sent a link to allow the tribunal and the respondent to check the veracity of her doctor’s letter. I accept that the letter is genuine.

[18]The respondent sent written submissions to the claimant and the tribunal by email on 15 March 2024.

[19]I decided that the hearing should not go ahead in the claimant’s absence. The claimant’s doctor’s letter does not address all the points set out in the presidential guidance, but it is clear that the claimant is experiencing severe mental distress and is starting medical management for her symptoms.

[20]I decided that, rather than arranging another costs hearing, I should decide the costs applications on the papers. I considered this to be in line with the (RJR) Page 3 of 18 overriding objective, in particular to deal with cases in ways which are proportionate, and to avoid delay and save further expense. I reached the decision to decide the costs applications on the papers for the following reasons: 20.1. a lengthy period has passed since the claim was dismissed. Arranging another costs hearing would lead to further delay and there is no evidence as to when the claimant will be well enough to attend another hearing; 20.2. the parties have prepared a costs bundle; 20.3. the claimant has provided the tribunal with rebuttal statements and other evidence (listed below) and so her written submissions can be considered; 20.4. the respondent’s initial preference was for the applications to be decided without a hearing, and the respondent has provided a witness statement and written submissions which can be considered.

[21]The tribunal wrote to the parties on 18 March 2024 to notify them that the costs applications would be decided on the papers, and that they should not attend the hearing. Evidence before me

[22]In reaching my decision on the papers, I have considered the documents in the bundle which was prepared for the costs hearing by the respondent with input from the claimant as required by the case management orders. It has 250 pages and a 4 page index and includes the respondent’s applications and costs schedules.

[23](For the emails on pages 137 and 189 I considered the attachments from the tribunal file as they were not included in the hearing bundle.)

[24]I also considered the witness statement of the respondent’s solicitor dated 23 February 2024.

[25]I also considered the documents sent after the bundle was prepared, including the claimant’s emails and attachments, the respondent’s solicitor’s email of 13 March 2024 and the respondent’s written submissions.

[26]The information from the claimant which I considered is listed below. The respondent’s costs applications

[27]This section outlines the reasons why the respondent says I should order the claimant to pay some of its legal costs.

[28]The respondent has made two costs applications. Both costs applications refer to ‘wasted costs’. I understand this to mean ‘costs unnecessarily incurred’ rather than wasted costs in the sense used in rule 80, as rule 80 (RJR) Page 4 of 18 applies to orders against representatives and the claimant has been representing herself throughout these proceedings.

[29]The respondent’s first application for costs was made on 10 November 2022 (page 105). The first application relates to the costs incurred as a result of the postponement of the interim relief hearing on 5 August 2022. The application is made under rule 76(1)(c) and rule 76(2), for costs incurred as a result of the claimant’s late application to postpone the hearing of 5 August 2022. The respondent seeks an order that the claimant pay its costs arising from the postponement, that is counsel’s fee of £3,000 plus VAT and solicitors’ fees of £1,500 plus VAT.

[30]The respondent’s second application for costs was made on 14 March 2023 (page 106). The second application is made under rule 76(1)(a) and rule 76(2). The respondent asks the tribunal to order the claimant to pay costs it says were incurred as a result of the claimant’s disruptive or unreasonable conduct, and breaches of tribunal orders.

[31]The respondent says the following conduct by the claimant amounts to disruptive or unreasonable conduct, or failure to comply with tribunal orders: 31.1. the late application to postpone the interim relief application and the failure to provide the respondent and the tribunal with copies of her mother’s death certificate. This was in breach of one direction of the tribunal, two orders and an unless order, and resulted in the claim being dismissed. The respondent believes that the claimant acted dishonestly in requesting a postponement of the hearing on 5 August 2022 and that the claimant’s mother did not die shortly before 5 August 2022 as the claimant said. The respondent says this caused the postponement of the hearing on 5 August 2022 and the case to be dismissed, and this caused the respondent ‘wasted’ costs in relation to responding to the claim and resisting the application for interim relief; 31.2. the claimant’s correspondence and applications to the tribunal regarding her subject access request, made despite the claimant being told by the respondent and the tribunal that the tribunal has no jurisdiction to hear such complaints (the respondent told the claimant it might seek a costs award based on this conduct in an email on 22 August 2022 (page 124)); 31.3. the substantial number of repetitive communications and applications the claimant has made to the tribunal in relation to her failure to comply with tribunal directions, making unfounded accusations that the respondent has a copy of the claimant’s mother’s death certificate, alleging conflict of interest on the part of the respondent’s barrister, and accusing the tribunal of bias against her; 31.4. the failure to comply with the tribunal’s direction for the interim relief application to produce a single bundle. (RJR) Page 5 of 18

[32]The respondent said in an email to the claimant on 9 November 2022 about her subject access request that unreasonable and disruptive conduct could result in the tribunal awarding costs against her (page 134).

[33]The respondent prepared a costs schedule provided in support of the second application, including the costs sought in the first application (page 109). The costs in the schedule extend only to costs incurred as a result of the claimant’s conduct.

[34]The respondent’s costs schedule was updated, most recently on 5 March 2024 (page 112). Again, this includes the costs sought in both applications, with the addition of the costs expected to be incurred for the costs hearing. The total costs sought are £35,446.50 plus VAT, in total £42,535.80. The claimant’s response to the costs applications

[35]In this section I summarise the claimant’s response to the costs applications.

[36]I have considered the claimant’s comments on the respondent’s costs applications which she has provided in various emails and attachments in the bundle, for example on 15 November 2022 (page 137, I reviewed the costs appeal documents attached to this email from the tribunal file), 14 March 2023 (page 161), 15 March 2023 (page 163), 20 March 2023 (page 166), 23 October 2023 (page 175), 13 December 2023 (page 176), 18 December 2023 (page 179), 26 January 2024 (page 182), 12 February 2024 (page 185), 21 February 2024 (page 189 and I reviewed the costs submissions attached to this email from the tribunal file), 26 February 2024 (page 192), and 6 March 2024 (page 193).

[37]I have also considered the claimant’s additional submissions and evidence in emails sent after completion of the bundle for this hearing, including those sent on 13 March 2024 as follows: 37.1. The claimant’s rebuttal statements (dated 23 February 2024 and 13 March 2024); 37.2. An email and statement dated 6 March 2024 from Kirsty McLean, a former colleague of the claimant; 37.3. The claimant’s doctor’s letter dated 13 March 2024 37.4. A letter, policy and documents relating to the respondent’s legal expenses insurance; 37.5. Experian screenshots called ‘proof of debt’ which show credit card and loan borrowing as at 11 February and 25 February 2024 (other screenshots showing credit card and loan borrowing as at 31 December 2023 and 28 January 2024 are at page 196); 37.6. an autoreply acknowledgment email from the Financial Ombudsman Service.

[38]I do not attempt to summarise everything the claimant says, but I record here what appear to be key points. The claimant says: (RJR) Page 6 of 18 38.1. the respondent was ordered to prepare a bundle for the interim relief hearing and failed to comply fully with this order; 38.2. the interim relief hearing was not recorded by the tribunal; 38.3. I recommended that the respondent should make a costs application at the end of the interim relief hearing; 38.4. the respondent has made its costs applications in retaliation for steps she took in proceedings, and the costs applications amount to discrimination; 38.5. the respondent has failed to respond to her subject access request and to respond to communications from the Information Commissioner’s Office; 38.6. the respondent has not replied to without prejudice offers she has made; 38.7. as the respondent referred to her inheritance, they must have a copy of her mother’s death certificate and must acknowledge that her mother has died; 38.8. the claimant was requested by family to ‘honour her mother’s privacy’ and providing her mother’s death certificate in breach of that request would have had knock on implications, both legal and personal; 38.9. the respondent has not had to pay any legal fees because they have the benefit of legal expenses insurance; 38.10. the respondent chose to instruct expensive legal representatives rather than use their legal insurance provider; 38.11. the respondent’s barrister and I seemed familiar to each other; 38.12. she has been at a disadvantage because she is a litigant in person, she does not understand the law and has been desperately trying to defend herself; 38.13. the respondent seeks to recover some of its costs twice as there is duplication of costs in the two applications. The claimant says this amounts to misleading the tribunal; 38.14. the respondent owes her money and this should be set off against any order for costs made against her.

[39]The claimant has also provided some information about her health. In her rebuttal statement, the claimant says that the costs applications have caused her stress and anxiety, and that she is traumatised by these events. She has referred to anxiety or depression and anxiety in earlier correspondence (for example pages 119, 128, 132, 152, 161). The claimant’s doctor’s recent letter says she is under severe mental distress and invites the tribunal to postpone her costs hearing. (The letter does not say whether the claimant is well enough to work or whether she is currently working.)

[40]In the case management orders sent to the parties on 19 November 2022 and in the tribunal’s letter of 28 February 2024, I explained to the claimant that, in deciding whether to make a costs order and if so in what amount, I could have regard to her ability to pay and that, if she would like me to consider her ability to pay, she should provide evidence of this in the bundle or in statements for the costs hearing. (RJR) Page 7 of 18

[41]The claimant has provided some information about her ability to pay, as follows. 41.1. I accept the evidence the claimant has given about her debts because overall it appears consistent. In an email on 24 November 2022 (page 138) the claimant said her financial situation was devastating and she had taken out a £10,000 credit card and a £25,000 loan. The Experian screenshots at page 196 show these debts had increased by the end of 2023 and the start of 2024. She had credit card borrowing of £14,741 in December 2023 and loan borrowing of £42,349 in January 2024. The updated versions of the Experian screenshots show that the claimant’s borrowing had reduced by February 2024: credit card borrowing was £9,503 and loan borrowing £41,765. 41.2. I accept that the claimant had a long period of unemployment after her dismissal by the respondent in July 2022. In November 2022 the claimant said she had not worked since her dismissal (page 138). In 18 December 2023 the claimant referred to her ‘inability to work for many, many months’ (page 179). In March 2024 the claimant said that she had ‘many months of unemployment’ after her dismissal by the respondent (rebuttal statement of 13 March 2024). 41.3. The claimant has not provided any evidence about whether she worked between November 2022 and now. The Experian screenshots show that the claimant’s credit card borrowing reduced by over £5,000 between December 2023 and February 2024 and that she paid £860 in loan repayments in both December 2023 and January 2024. It appears likely that she obtained employment at some point in 2023 or 2024.

[42]In her responses to the costs applications, the claimant has also repeatedly referred to the substantive issues in her claim. Ms McLean’s statement also focuses entirely on the issues in the claimant’s substantive claim and does not contain any information which is relevant to the costs applications. I return to this below.

The law

[43]The power to award costs and to make preparation time orders is set out in the Employment Tribunal Rules of Procedure 2013. Unlike in civil litigation where the successful party can expect to recover some or all of their costs from the unsuccessful party, in the employment tribunal jurisdiction the general position is that parties bear their own costs, unless one of the grounds for making a costs or preparation time order is made out and the tribunal decides to exercise its discretion to make an award of costs. Orders for costs in the employment tribunal remain the exception rather than the rule.

[44]The power to award costs is set out in the Employment Tribunal Rules of Procedure 2013. Rule 77 says that an application for costs may be made up to 28 days after the date on which the judgment finally determining the proceedings was sent to the parties. (RJR) Page 8 of 18

[45]Costs is defined in rule 74 as ‘fees, charges, disbursements or expenses incurred by or on behalf of the receiving party’.

[46]Under rule 76(1), a tribunal may make a costs 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 proceedings (or part) or the way that the proceedings (or part) have been conducted; or (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.”

[47]Rule 76(2) says: “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.”

[48]There are three stages to the test to be applied by a tribunal considering costs applications under rule 76. The first stage is for the tribunal to consider whether the ground or grounds for costs put forward by the party making the application are made out. If they are, the second stage is for the tribunal to consider whether to exercise its discretion to make an award of costs. If the tribunal decides to make an award of costs, it must then decide the amount of the award.

[49]In determining whether unreasonable conduct under rule 76(1)(a) is made out, a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct (McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

, CA). However, it is not necessary to analyse each of these aspects separately, and the tribunal should not lose sight of the totality of the circumstances (Yerrakalva v Barnsley Metropolitan Borough Council

[2012] ICR 420

, CA). At paragraph 41 of Yerrakalva, considering an application for costs against a claimant, Mummery LJ emphasised that: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it has.”

[50]The tribunal should also bear in mind that in litigation there may be more than one reasonable approach: the range of reasonable responses test is relevant here (Soloman v University of Hertfordshire EAT 0258/18). (RJR) Page 9 of 18

[51]In costs applications, litigants in person may be judged less harshly than those who are professionally represented (AQ Ltd v Holden

[2012] IRLR 648

EAT). Tribunals should not apply the standards of a professional legal adviser to lay people.

[52]The insurance arrangements of a party seeking a costs order are not relevant to the tribunal’s discretion to award costs. In Mardner v Gardner (UKEAT0483/13) the EAT held that a party should not be allowed to avoid the costs consequences of unreasonable conduct because of the other party’s prudent decision to obtain an insurance policy. This is based on the public policy principle approved by the House of Lords in Parry v Cleaver

[1970] AC 1

UKHL.

[53]As to the amount of the award, under rule 78, the tribunal can make a costs order which does not exceed £20,000 or it may order payment of costs with the amount to be determined by detailed assessment: “A costs order may—(a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, 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…”

[54]Costs orders are compensatory and not punitive. There must be some link between the offending conduct and its effect on costs, but this does not require a minute examination to show a causal link for each item of cost. A broadbrush approach is permitted. Only costs that are ‘reasonably and necessarily incurred’ may be awarded (Yerrakalva v Barnsley Metropolitan Borough Council

[2012] ICR 420

, CA).

[55]As to ability to pay and the amount of the order, the EAT in Vaughan v London Borough of Lewisham and ors

2013 IRLR 713

suggested that when considering what the paying party can afford to pay, relevant questions could include: 55.1. was there a reasonable prospect of the claimant being able, in due course, to return to well-paid employment and thus to be in a position to make a payment of costs? 55.2. if so, what limit ought nevertheless to be placed on her liability to take account of her means and of proportionality? Conclusions Introduction (RJR) Page 10 of 18

Introduction

[56]I first set out some general points on issues raised by the claimant.

[57]Recording: The claimant says that the interim relief hearing was not recorded. That is correct. The hearing took place on 10 November 2022. The Practice Direction and Presidential Guidance on the recording of employment tribunal hearings was published on 20 November 2023; prior to that date it was not general practice in the employment tribunal to record hearings.

[58]Discussion at the interim relief hearing about costs application: I did not, as the claimant suggests in her responses to the costs applications, recommend that Miss Platt make a costs application. Miss Platt said at the end of the hearing that the respondent wanted to make a costs application. I said that the respondent should make the application in writing so that the claimant could provide information on her ability to pay. I also explained this in the judgment reconsidering the interim relief judgment (page 64).

[59]The claimant’s claims against the respondent: In her responses to the costs applications, and in the statement of Ms McLean, there is a lot of information about the claimant’s substantive complaints against the respondent. These complaints are not proceeding. I have not heard any evidence about them. In this judgment I am not making any decision as to whether any of the claimant’s complaints succeed. Those are not matters for me to consider, because the claim has been dismissed.

[60]I now go on to apply the legal principles to the facts in this case, to decide the respondent’s applications for costs. Stage 1: are there grounds for a costs order?

[61]At this first stage, I consider whether there are grounds for a costs order against the claimant.

[62]The respondent relies on the claimant’s postponement application and failure to provide a copy of her mother’s death certificate in its first and second applications for costs. It says the claimant’s conduct in this respect gives ground for costs under rule 76(1)(a) (unreasonable conduct), rule 76(1)(c) (postponement of a hearing on an application made less than 7 days before the date of the hearing) and rule 76(2) (breach of an order or practice direction).

[63]The claimant’s postponement application in itself gives grounds for a costs order under rule 76(1)(c), as it was made one day before the interim relief hearing was due to take place.

[64]The claimant relied on her mother’s very recent death as the reason for her application. The tribunal made orders that she provide evidence in support. The claimant was given four opportunities to provide a copy of her mother’s death certificate in support of the application. She failed to do so and, as I (RJR) Page 11 of 18 explained in the order refusing to set aside the unless order (page 89), she did not give a good reason to explain that failure. I have decided that the most likely explanation for the claimant’s failure to provide a copy of her mother’s death certificate is that her mother did not die when the claimant said she did, and therefore the claimant did not have a good reason for making a late application. The claimant’s conduct in making a late application without good reason and misleading the tribunal about her mother’s death was also unreasonable conduct under rule 76(1)(a) giving grounds for a costs order.

[65]The effect of the claimant’s conduct was that the respondent incurred duplicate fees for counsel for the interim relief hearing, and additional solicitor’s costs arising from the postponement and duplicated preparations for the second interim relief hearing.

[66]The respondent also relies on the substantial number of repetitive communications and applications the claimant has made to the tribunal in relation to her failure to comply with tribunal directions, making unfounded accusations that the respondent has a copy of the claimant’s mother’s death certificate, alleging conflict of interest on the part of the respondent’s barrister, and accusing the tribunal of bias against her.

[67]I have decided that the claimant’s conduct in this respect was unreasonable conduct within the meaning of rule 76(1)(a). In particular: 67.1. the claimant made repeated and unsupported allegations of bias against the respondent’s barrister and the tribunal, including in her responses to the costs applications after these matters had been addressed in the judgment reconsidering the interim relief application; 67.2. the claimant made repeated allegations that the respondent already had a copy of her mother’s death certificate and was deliberately hiding it, again the claimant did this without any reasonable basis; 67.3. the claimant made repeated submissions and applications about the unless order (including an application to vary the order and an application to set aside the order which was supported by seven separate emails as listed in the footnote to paragraph 21 of the reasons for the refusal to set aside the unless order, at page 87).

[68]Even taking into account that she was unrepresented, it was unreasonable of the claimant to make serious and repeated allegations of bias and to allege that the respondent was deliberately hiding a document, without proper evidence to support this. It was unreasonable of the claimant to engage in repetitive applications and correspondence in response to the unless order, when (as I have found is most likely) the real reason she was unable to comply was because her mother had not died when she said she did, and so she was unable to provide evidence in support of her application to postpone. That was conduct which was outside the range of reasonable conduct for a claimant, including for an unrepresented claimant. (RJR) Page 12 of 18

[69]The nature of the allegations made by the claimant meant that the respondent reasonably felt that it had to reply to the claimant’s repetitive correspondence and applications, and the effect was that the respondent incurred additional fees doing so.

[70]The other two matters relied on by the respondent as unreasonable conduct were, considering the claimant’s status as a litigant in person, not unreasonable: 70.1. It was not unreasonable for the claimant, after being told by the respondent’s representative and the tribunal that the tribunal had no jurisdiction in respect of a subject access request, to repeatedly refer to her subject access request. It was not unreasonable for the claimant as a litigant in person to consider that her subject access request might be in some way relevant to the issues in her claim; 70.2. I have not been able to identify a tribunal order requiring the claimant (or, as the claimant suggests, requiring the respondent) to prepare a single bundle for the interim relief hearing. Even if there was such an order, it was not unreasonable for the claimant, an unrepresented party, to overlook this and to provide her documents as separate email attachments rather than as one pdf document.

[71]The postponement of the costs hearing itself was also referred to in the respondent’s written submissions as unreasonable conduct. I do not find the claimant’s conduct in this regard to be unreasonable. It was open to her to ask for the costs applications to be decided at a hearing, and to ask for that hearing to be held in person so that she could attend with moral support from supporters, friends and family. The reason that the costs hearing was unable to go ahead on 22 March 2024 was the claimant’s ill health, which was confirmed by her doctor. The application for postponement of the hearing for that reason was not unreasonable. However, as I explain below, I accept that the costs the respondent incurred in making the costs applications and preparing to attend the hearing flowed, in large part, from the claimant’s earlier unreasonable conduct.

[72]In summary, I have concluded therefore that there are grounds to make an award of costs against the claimant as follows: 72.1. under rule 76(1)(a) and rule 76(1)(c) for making a late application to postpone the hearing on 5 August 2023, without having good reason to do so and misleading the tribunal about the reason for the application; and 72.2. under rule 76(1)(a) for making repeated communications and applications about the unless order, including unfounded allegations of bias against the respondent and the tribunal, and unfounded accusations that the respondent was deliberately hiding a document.

[73]I have referred to these matters below as the claimant’s unreasonable conduct. (RJR) Page 13 of 18

[74]I accept that the respondent made the costs applications because the claimant’s conduct of the proceedings led to additional unnecessary costs being incurred by the respondent. Grounds for costs are made out. The costs applications are not themselves discriminatory or any form of improper retaliation by the respondent. Stage 2: should I make a costs order?

[75]Having found that there are proper grounds for making a costs order, I next consider whether I should exercise my discretion to make a costs order.

[76]I remind myself that orders for costs in the employment tribunal remain the exception rather than the rule, and that costs are compensatory not punitive.

[77]Some factors mentioned by the claimant in her response to the applications are not relevant here or cannot be taken into account in the exercise of my discretion. These include: 77.1. The fact that the respondent had legal expenses insurance is not relevant. The definition of ‘costs’ in rule 74 includes fees and expenses incurred by or on behalf of the receiving party. That includes costs paid by an insurer. The paying party should not benefit from the prudence of the receiving party’s decision to obtain insurance cover. This is confirmed by the case of Mardner v Gardner, referred to above. 77.2. The issues relating to the claimant’s subject access request are not relevant to the exercise of my discretion. 77.3. I cannot take the substantive merits of the claimant’s complaints into account, as I have not heard any evidence about them. The substantive complaints are no longer being considered as the claim has been dismissed. My assessment of the merits for the purpose of the interim relief hearing does not assist me with my decision on the costs applications. 77.4. Without prejudice settlement discussions are confidential to the parties. There is no suggestion that the respondent has waived that confidentiality or that any discussions were ‘without prejudice save as to costs’ so that I could consider them at this stage.

[78]The claimant’s status as a litigant in person is relevant to my decision as to whether to make a costs order. The claimant should not be judged by the same standards as a represented party. However, the claimant’s unreasonable conduct in applying for a late postponement for no good reason, misleading the tribunal about her mother’s death and subsequently sending repetitive communications and applications about the unless order is not entirely attributable to a lack of legal knowledge or understanding about the tribunal process. Even without legal advice, the claimant ought to have appreciated the unreasonable nature of her conduct. Her unreasonable conduct has resulted in the respondent incurring additional unnecessary costs. (RJR) Page 14 of 18

[79]The claimant’s ability to pay any costs order is also relevant to this question. I have accepted that she has substantial debts and was unemployed for many months after her dismissal. She has also had some ill-health. However, her financial situation appears to have improved more recently, and it is likely that she has obtained alternative employment.

[80]The costs warning made by the respondent on 9 November 2022 is also relevant. (An earlier warning was in relation to the subject access issues only.) The claimant was warned by the respondent that unreasonable and disruptive conduct could result in the tribunal making an award of costs against her. The claimant can be expected to have understood from this that if she acted unreasonably, she would face an application for costs.

[81]Taking these factors into account, I have decided that I should exercise my discretion to make a costs order. It is fair to expect the claimant to pay or contribute towards the costs the respondent incurred as a result of her unreasonable conduct. Stage 3: in what amount?

[82]Finally, I consider the amount of the costs order that I should make against the claimant. I can either make an order not exceeding £20,000, or I can order payment of costs with the amount to be determined by detailed assessment.

[83]As costs are compensatory not punitive, I have first reviewed the costs sought by the respondent to make a broad-brush assessment of the costs which were incurred by or on behalf of the respondent as a result of the claimant’s unreasonable conduct.

[84]The claimant has raised concerns that there has been duplication of costs sought, arising from the fact that the respondent has made two applications for costs. The respondent’s solicitors explained that the costs schedule supporting the second application includes the costs of both applications. They have said that they seek the costs in the second application if the first application is not awarded in full or in part (page 178) and that if both applications succeed, they seek the costs set out in the schedule to the second application (page 181).

[85]It is understandable that this has led to some confusion for the claimant, a litigant in person, but I fully accept that the respondent has not, as the claimant suggests, sought to mislead the tribunal in its costs applications. I have assessed the two applications separately, taking care to avoid including any costs claimed in the first application in the assessment of the costs claimed in the second application.

[86]I have started with the costs set out in the first application (page 105). That application succeeded in full, as I have accepted that the claimant’s conduct in relation to the postponement of the hearing on 5 August 2022 was unreasonable. I accept that all the costs sought in the first application are (RJR) Page 15 of 18 additional costs incurred by or on behalf of the respondent as a result of the claimant’s unreasonable conduct, that is: 86.1. Counsel’s brief fee for 5 August 2022 of £3,000 plus VAT; 86.2. The additional fees for work carried out by the respondent’s solicitor between 5 August 2022 and 10 November 2022, in relation to the postponement of the interim relief hearing, assessed by the respondent as £1,500 plus VAT.

[87]The second application did not succeed in full. I have found that some of the conduct relied on by the respondent in the second application was not unreasonable. The claimant does not have to pay towards costs incurred in respect of those aspects of her conduct.

[88]Further, the schedule supporting the second application includes costs incurred in defending the claim generally and in defending the interim relief application. These are not costs arising from the claimant’s unreasonable conduct. The claimant’s unreasonable conduct did not cause the respondent’s costs of responding to the claimant’s claim and her application for interim relief (as the respondent suggests in paragraph 6 on page 107). The respondent did not suggest that the claimant’s claim had no reasonable prospect of success under rule 76(1)(b). I have not found that it was unreasonable for the claimant to bring a claim or to make an application for interim relief.

[89]The respondent would still have had to defend the claim and the interim relief application even without the claimant’s unreasonable conduct in relation to the postponement, the reason she gave for it and her failure to provide evidence in support. The bulk of the costs included under the heading ‘Documents’ in the respondent’s updated schedule of costs relate to the defence of the claim in general and are not costs caused by the claimant’s unreasonable conduct. This is likely to apply to the fees set out in the correspondence section as well.

[90]Therefore, I have assessed which of the respondent’s costs in the second schedule (page 112 to 115) were: 90.1. incurred after 10 November 2022 (to avoid duplication with the first application); and 90.2. incurred as a result of the claimant’s unreasonable conduct (the conduct summarised at the end of the stage 1 section above).

[91]I have decided that the respondent’s costs arising from making the costs applications themselves should be included in this assessment. They are costs which are attributable in large part to the claimant’s unreasonable conduct. I make a reduction of 20% of these costs to reflect the fact that some of the time spent on the costs applications was in relation to elements of the second costs application which did not succeed. (RJR) Page 16 of 18

[92]I have decided that the costs in the updated schedule incurred by or on behalf of the respondent after 10 November 2022 and attributable to the claimant’s unreasonable conduct are as follows.

[93]Documents section of the schedule: £101.25 in total:- 93.1. one of the applications for an unless order £101.25 (page 142, page 126 having been made before 10 November 2022).

[94]Fees incurred in making the costs applications from documents section of schedule: £1,900 in total made up of:- 94.1. Reviewing schedule of costs £55.00; 94.2. Drafting costs application and schedule £832.50; 94.3. Preparing bundle for costs hearing £562.50; 94.4. Drafting witness statement for costs hearing £337.50 and 94.5. Revising costs schedule: £112.50.

[95]The costs for the respondent’s solicitor attending the costs hearing were not incurred as the hearing did not go ahead, but counsel’s brief fee for the hearing was already incurred when the hearing was postponed (respondent’s email of 13 March 2024). Counsel’s fee was £3,500 plus VAT.

[96]I make a reduction of 20% to the costs of the costs applications to reflect the fact that the second costs application did not succeed in full and also that a substantial part of the work on the schedule of costs related to entries that were not attributable to the claimant’s unreasonable conduct. That means the costs incurred in making the costs applications are £1,520 (solicitor’s fees) and £2,800 (counsel’s fee).

[97]The correspondence costs are not broken down in the schedule. The correspondence costs up to 10 November 2022 are already included in the first application. A proportion of the correspondence after this date would have been dealing with the claimant’s unreasonable communications and applications. I adopt a broadbrush approach to this. I assess these costs as a further £1,000.

[98]Overall, my assessment of the total costs attributable to the claimant’s unreasonable conduct is as follows. Costs Amount Totals First application £4,500.00 Second application: Documents £101.25 Costs applications £1,520.00 Counsel’s fee for costs hearing £2,800.00 Correspondence £1,000.00 Total £9,921.25 Total with VAT 20% £11,905.50 (RJR) Page 17 of 18

[99]The total including VAT is £11,905.50. I find that this was reasonably and necessarily incurred. The respondent’s solicitor’s hourly rates are not expensive as the claimant suggests: they are within current HMCTS guideline hourly rates. Counsel’s fees are reasonable.

[100]I next consider again the claimant’s ability to pay a costs award.

[101]It is likely that the claimant is now working, although she has not given any information as to how much she currently earning. This suggests that she may be able to afford to pay a costs award. However, she already has a large debt and pays a substantial sum towards that each month. She has mental ill-health which could impact on her future ability to earn. Taking these factors into account, there may be a reasonable prospect of the claimant being able to pay a costs order of a moderate amount but payment will most likely have to be in small instalments.

[102]It is not in the interests of justice for the claimant to be saddled with further substantial debt which she is unlikely to be able to pay off within a reasonable period. Taking into account proportionality and the information I have about the claimant’s financial position, I have decided that the amount of the costs order should be £3,000. This is a fair contribution towards the respondent’s costs which were incurred as a result of the claimant’s unreasonable conduct.

[103]The claimant has asked for sums owed to her by the respondent to be set off against this award. As her claim has been dismissed no award has been made to her, so there is no amount to be set off.

Introduction

[1]Judgment on costs was sent to the parties on 14 May 2024. On the respondent’s applications, I awarded costs against the claimant in the sum of £3,000.

[2]On 16 and 28 May 2024 the claimant sent emails to the tribunal and the respondent in which she asked for the costs judgment to be reconsidered. I was made aware of the reconsideration application on 17 July 2024.

[3]I have considered the application under rule 72(1). The rules on reconsideration

[5]The requirement that a judgment may only be reconsidered where reconsideration is necessary in the interests of justice reflects the public interest in the finality of litigation. (R) Page 1 of 4

[6]Rule 71 says that an application for reconsideration must be made in writing within 14 days of the date on which the original decision was sent to the parties.

[7]Rule 72 explains the process to be followed on an application for reconsideration under rule 71. Rule 72 (as amended with effect from 27 January 2024) says: “(1) The Tribunal shall consider any application made under rule 71. If the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Tribunal’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Tribunal considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.” Conclusions on the claimant’s application

[8]The two emails containing the claimant’s application for reconsideration were sent within the required 14 days of the date on which the costs judgment was sent to the parties. The claimant complied with rule 71.

[9]Rule 72(1) requires me to consider whether there is any reasonable prospect of the original decision being varied or revoked. I need to decide whether there is any reasonable prospect of a conclusion that it is necessary in the interests of justice to vary or revoke the original decision. I have considered the claimant’s application with this test in mind.

[10]I have considered both the claimant’s emails in full. The claimant relies on five main points in her application. My conclusions on these points are set out below.

[11]Point 1: the claimant says that the timing of the respondent’s costs applications is contrary to the principle in the case of Henderson v Henderson, and that the respondent should have explicitly raised this (R) Page 2 of 4 argument during the full hearing of her case. She says the demand for her mother’s death certificate was never fully argued or justified within the main proceedings.

[12]The principle in the case of Henderson v Henderson is that a party may not raise any claim in subsequent litigation which they ought to have raised in a previous claim. The principle is not relevant here. The costs order was made in the same ligitation as the claimant’s main claim. The claimant’s conduct which I found to be unreasonable was part of the same proceedings. No full merits hearing took place in the proceedings because the claim was dismissed before the full merits hearing, by the operation of an unless order.

[13]Point 2: The claimant says she has not had the opportunity to address the costs issue and to argue against the appropriateness of the unless order.

[14]The claimant has had opportunities to address the costs issue. As explained in paragraphs 9 to 21 of the costs judgment, I accepted the claimant’s request for the costs application to be decided at a hearing, and a subsequent request for that hearing to be converted from a video to an in person hearing. The costs hearing did not go ahead, at the claimant’s request, because she was unable to attend because of ill-health. I decided that the costs applications should be decided without a hearing, taking in to account written representations which the claimant had asked to be considered. I considered her written representations, as explained in paragraphs 36 and 37 of the costs judgment. The claimant was also invited on two occaisons to make representations about her ability to pay.

[15]The claimant also had several opportunities to make representations about the unless order itself, including at the hearing on 10 November 2022. Her applications to vary the unless order, and to have it set aside were refused.

[16]Point 3: The claimant says she is self-represented and the costs judgment fails to take account the difficulties she had navigating complex legal proceedings, particularly in light of her ongoing personal circumstances.

[17]I did take these factors in account. When considering whether there were grounds to make a costs order, I decided that some aspects of the claimant’s conduct which the respondent said were unreasonable were not unreasonable when considering the claimant’s status as a litigant in person (paragraph 70). I accepted that the claimant’s request to postpone the costs hearing on 22 March 2022 was reasonable because of her illhealth (paragraph 71). When exercising my discretion as to whether to make an order, and in what amount, I took into account the claimant’s status as a self-represented party and her personal circumstances (at paragraphs 78, 79, 85, 101 and 102 for example). (R) Page 3 of 4

[18]Point 4: In her second email, the claimant says that the pursuit of costs by an employer whose legal costs have been reimbursed by their insurer is unjust and contrary to established legal principles. She relies on the cases of Gee v Shell UK Ltd

[2003] IRLR 82

and Govindiah v CEF Holdings Ltd

[2011] ICR 1089

[19]The claimant’s summary of the law on this point is not correct. The authorities she relies on do not say what she says they say. Gee v Shell UK Ltd is a case about costs in the employment tribunal, but not in relation to insurance. I have not been able to find a case called Govindiah v CEF Holdings Ltd. The citation is another case entirely (Bridge Trustees Ltd v Yates

[2011] ICR 1069

–1099, a case about the definition of money purchase benefits under the Pensions Act 1993).

[20]As I explained in paragraphs 52 and 77 of the costs judgments, there is an established public policy principle that a paying party should not benefit from the other party’s decision to obtain insurance.

[21]Point 5: the claimant says that the respondent’s conduct in seeking costs raises questions about the respondent’s motives and good faith in these proceedings. I have not found that any such questions have been raised.

[22]I have concluded that there is no reasonable prospect of variation or revocation of the original costs judgment. The claimant’s application for reconsideration does not raise any procedural error or any other matter which would make reconsideration of the costs judgment necessary in the interests of justice. The application for reconsideration is therefore refused under rule 72(1).