B Royce v Legalicity (UK Operations) Ltd: 3312263/2023

EMPLOYMENT TRIBUNALS

Case No 3312263/2023

Between

B RoyceClaimant

Legalicity (UK Operations) LtdRespondent

Before

Employment Judge Anderson

In person for claimant

S Butler (instructed by counsel) for respondent

Date 29 November 2024

JUDGMENT

[1]The claimant’s claim of direct age discrimination is dismissed.

REASONS

Background

[1]The claimant was employed by the respondent from 9 October to 20 October 2023. He brings a claim of direct age discrimination against the respondent in that he claims his dismissal on 20 October 2023 was less favourable treatment on the ground of his age. The respondent denies discrimination and states it dismissed the claimant over performance concerns. ACAS early conciliation commenced on 21 October 2023 and ended on 23 October 2023. The claim was field in the employment tribunal on 24 October 2023.

The Hearing

[2]The parties filed a joint bundle of 233 pages. The claimant filed a witness statement. The respondent filed a witness statement from James Stonehill and a skeleton argument. Both witnesses attended the hearing and gave evidence on oath. Oral judgment was given at the end of the hearing. The respondent requested written reasons and Mr Butler said the respondent was considering making a written application for costs.

The Issues

[3]A list of issues was agreed at a hearing before EJ Skehan on 5 September 2024 as follows: 1. Direct age discrimination (Equality Act 2010 section 13)1.1 The claimant was 51 at the date of dismissal. He compares his treatment with people in the age group 25 to 35.

1.2 It is common ground that the claimant was dismissed.

1.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than Emanual Farauanu or alternatively, the hypothetical comparator.

1.4 If so, was it because of age?

1.5 This is not a case where the respondent relies upon the statutory defence of any treatment being a proportionate means of achieving a legitimate aim. Findings of Fact

[4]The claimant was employed by the respondent, a company that uses artificial intelligence to undertake patent searches, as a Senior Software Engineer, from 9 October 2023. The respondent is a small company who, at that time had three employees, including the Chief Technical Director James Stonehill, who was also a director of the company. Employment had been offered to an accepted by a fourth person on 21 September 2023, as a Software Engineer, to commence on 23 October 2023.

[5]The claimant’s role was as a front end developer for the respondent’s business and Mr Stonehill’s expertise was as a back end developer. Mr Stonehill interviewed and recruited the claimant. The claimant was 50 at the time he was recruited.

[6]On 9 October 2023 the claimant experienced some problems with linking a particular online account to the respondent’s systems. He requested assistance and Mr Stonehill held a telephone meeting with him to go through that.

[7]On 10 October 2023 the claimant missed a team meeting scheduled for 10am. The claimant’s evidence was that this was his second day of work and configuration of his new laptop involved more work than he could achieve before the meeting commenced, meaning that he did not receive an alert. It was uncontested that his laptop was not configured to receive alerts by 10am on 10 October 2023.

[8]Mr Stonehill and the claimant had a further meeting that afternoon to discuss how the respondent’s systems worked.

[9]On 13 October 2023 the claimant and Mr Stonehill had a 1:1 meeting. Mr Stonehill made a note of that meeting as follows: Notes:  Going forward, please keep an eye on your calendar and accept calendar invites to confirm you've seen the invite and are planning to attend. I regularly have to move meetings around so it's best not to assume that recurring meetings will always be at the same time.  As a development point I'd recommend brushing up on git processes like how to revert branches via git and things like that.  To discuss: mentoring of new FE developer  Good job pushing the team forward on Slack and suggesting improvements like the service workers and other code based improvements. Please keep this kind of thing up. I'm not a good FE developer so I won't be able to see what we should be doing to keep the code base clean and performant.

[10]The claimant said that he had not seen these notes before they were included in the bundle and the tribunal accepts that evidence. It is also satisfied that the note was made contemporaneously by Mr Stonehill as he refers to it and provides a copy to Stephanie Curcio in an online conversation on 16 October 2023.

[11]The claimant agreed that bullet points 1, 3 and 4 were discussed at the meeting. He did not recall any mention of GIT. The tribunal finds that Mr Stonehill did raise with the claimant that he needed to brush up his GIT skills in that meeting. It notes that there was a discussion between Mr Stonehill and the claimant about GIT on 10 October 2023 in which the claimant asks for advice, and evidence that the note was made contemporaneously by Mr Stonehill as he showed it to Stephanie Curcio on 16 October.

[12]On the same day, 13 October 2023, Mr Stonehill raised in an online conversation with his business partner and CEO of the respondent, Stephanie Curcio, that he had concerns about the claimant’s ability to do his job, as follows: JS: I think I made a mistake with Bruce… SC: Lol why?? JS: he's just struggling with things I'd expect a senior dev to be able to handle. On the other hand, he's good from a product perspective and has good soft skills... I’ll see how the next few weeks go. SC: I think that's a fair point of conversation to discuss in terms of his compensation JS: I think it's tricky to legally reduce someone's salary after they've started. I'd rather just fire him if he's not meeting senior level expectations. SC: Fair enough that would be disappointing JS: Yeah we'll see. It's a tough one because he does have some real strengths. But either way it's pretty easy to terminate his employment while he's in his probation period so if it doesn't work it's not the end of the world.

[13]A further team meeting took place on 16 October 2023 which the claimant failed to attend. Mr Stonehill contacted the claimant during the meeting, but he did not respond. The next day he said had just discovered ‘that the machine turned off my notifications because I was mirroring the screen.’ He apologised.

[14]On 18 October 2023 at 22:59 Mr Stonehill sent a message to the claimant stating that a client had reported an issue with using the respondent’s systems. He fixed it and said they could discuss how it arose the next day. It is Mr Stonehill’s evidence that this error was caused by the claimant and undermined the respondent’s reputation. Furthermore, that it should have been obvious to the claimant that it was his error. The claimant did not address this incident in his witness statement but said in cross examination that the error was not related to his work and was something that Mr Stonehill should have tested. He put it to Mr Stonehill in cross examination there was no proof of reputational damage. Mr Stonehill said proof would have involved disclosing business sensitive documents.

[15]The tribunal finds that this incident, which led to a customer of the respondent complaining that the respondent’s systems were not working properly, caused Mr Stonehill to be concerned about the respondent’s reputation. The tribunal finds that Mr Stonehill believed that the reason the system was not working was because of a change that the claimant had made. He explained in cross examination that he had run a programme to locate the fault, and this led him to undo a change the claimant had made, which fixed the fault. From this he concluded that the fault was caused by the claimant’s work. The tribunal makes no finding on whether the claimant was actually to blame.

[16]On 19 October 2023 the claimant asked if he could be excused from a meeting with Mr Stonehill on 20 October as he had a GP appointment. Mr Stonehill agreed.

[17]On 20 October at 11:41 Mr Stonehill messaged Ms Curcio asking her if she had time to chat. At 12:13 the claimant messaged Mr Stonehill to tell him he was being sent to hospital for an emergency x-ray. Mr Stonehill responded ‘Oh shit! I hope you’re OK.’ Mr Stonehill then forwarded the exchange to Ms Curcio at 12:15 with the message ‘Fuck I was going to fire Bruce today and he just sent me this...’

[18]When the claimant returned to work later that day Mr Stonehill had a video call with him and told him that he was dismissed. The call took place around 16:30 and lasted for 12 minutes. What was said in the call is a matter of dispute between the parties.

[19]Mr Stonehill’s written evidence is that he decided to dismiss the claimant on the basis of his performance and explained to the claimant in the meeting his reasoning which included that he did not think the claimant had the required level of expertise in using the programme Next.js. He denies that he discriminated against the claimant on the basis of his age. He states that he was unaware that the claimant was claiming age discrimination until he received ACAS forms in the post several months after the claimant was dismissed.

[20]The claimant’s evidence, as set out at paragraphs 24 and 25 of his witness statement, is that during the call Mr Stonehill said ‘24. …while he had “no obligation to explain” he had made the decision based on his assumption that “people over 50 are generally more vulnerable to flu and disease” which he claimed was apparent in my case he specifically referenced my age bracket in relation to perceived health vulnerabilities.

[25]Mr Stonehill then explicitly stated his preference to hire a young “out-of-uni” developer even if the younger replacement would only be at a mid-level of experience.’21. In cross examination it was put to the claimant that Mr Stonehill had not said those things and the claimant said that he did. The claimant put to Mr Stonehill in cross examination that he had told the claimant he did not need to give a reason for dismissing him. Mr Stonehill denied that he had said that. It was not put to Mr Stonehill that he had made comments about the claimant’s age and propensity to be ill, or that he wanted to hire someone cheaper.

22. Shortly after the meeting Mr Stonehill confirmed the dismissal in writing by email giving the following reason: As just discussed on our call, I've made the difficult decision to end your probation period early as I do not feel you have demonstrated the skills necessary to succeed in the role long term. I understand this will be disappointing news and I'm sorry for that.

23. The claimant responded in an email on 21 October 2023. He referred to having been unfairly dismissed and contacting ACAS in order to start a claim in the employment tribunal. In a section entitled ‘Feedback’ he set out at length his criticisms of the respondent’s onboarding/new starter process. In a section entitled ‘conclusion’ he states: Initially, you were reluctant to provide concrete rationale for my dismissal. However, I take the view that upon my insisting request for an explanation, you invented the brand-new underperformance allegation, which even if was a factor it unfairly overlooks the lack of proper onboarding, training, and support provided.

24. The claimant was asked why he had not referred to the alleged comments about age in this lengthy email or given an indication that his claim was about discrimination. He said that this was implicit in his use of the phrase ‘breach of my statutory rights’ and that he had hoped his email would force Mr Stonehill into admitting in writing what he had said. 25. On 22 October 2023 Mr Stonehill emailed the claimant to say that he would follow up later in the week reiterating the reasons for dismissal and recapping what had been said in the meeting. The claimant respondent the same day telling him it was now too late to do so.

[26]Where there were only two witnesses to the conversation on 20 October 2023 and the witnesses have different accounts of the conversation, the tribunal has considered the contemporaneous documentation as well as the written and oral evidence of the witnesses in making its findings of fact.

[27]The tribunal has taken into account that immediately after the meeting Mr Stonehill wrote to the claimant confirming his dismissal on performance grounds and that in the claimant’s email response of 21 October 2023 he addresses deficits in the respondent’s onboarding process at length (i.e. setting out that any issues he had were due to the respondent’s lack of assistance to him as a new starter) and also refers to Mr Stonehill giving underperformance as a reason. It has taken into account that Mr Stonehill clearly did have concerns about the claimant’s performance as evidenced by the notes of the 1:1 meeting on 13 October 2023 and his conversations with Ms Curcio. It notes that Mr Stonehill actively recruited the claimant and would have been aware from the claimant’s claimed 25 years of experience in software engineering of his approximate age at the time of recruitment. On the claimant’s brief absence on 20 October 2023, the tribunal notes that the claimant was readily granted leave to attend a GP appointment and Mr Stonehill showed concern when the claimant was sent to hospital for an xray. The tribunal notes that Mr Stonehill told Ms Curcio that he was intending to dismiss the claimant before he knew that the claimant needed to have an x-ray.

[28]The tribunal notes that the claimant makes no mention of comments about his age in his subsequent communications with Mr Stonehill. Those alleged comments are shocking, and the tribunal finds that if they had been made they would have been the focus of the email of 21 October 2023 as well as being front and centre in the grounds of claim. They were not referred to at all in the email of 21 October and only obliquely in the grounds of claim. The tribunal does not accept the claimant’s explanation that he was hoping to provoke Mr Stonehill into making an admission in writing. That makes no sense.

[29]For all of these reasons the tribunal finds that Mr Stonehill did not make any comments about the claimant’s age in the meeting of 20 October 2023 or say that he preferred to employ someone younger and cheaper, and told him that the reason he was being dismissed was because he did not have the skills required to do the job. It finds that Mr Stonehill may have been reluctant to set out the reasons in detail but when an explanation was demanded by the claimant, he gave the reason as underperformance.

[30]ACAS conciliation began on 21 October 2023 and ended on 23 October 2023. This claim was filed in the tribunal on 24 October 2023. Submissions

[31]Mr Butler, for the respondent, relied on his skeleton argument. In oral submissions he said that it was clear from the oral evidence that Mr Stonehill had been doing his level best to explain the dismissal and his reasons for the dismissal. What it was alleged he had said in the meeting was not put to him, but he had explained with reference to documents in the bundle why his concerns about performance were well founded. Mr Butler noted that that was not strictly speaking the issue for the tribunal which was whether age played a part in the decision to dismiss. In contrast the claimant was not directly answering questions and there were a number of occasions on which he failed to give straight answers and a number of times where questioning got near the crux of the claim, and he was at pains to avoid answering. Much of what he said was implausible. The claimant’s case is that he was discriminated against because of his age in the things that were said to him at the dismissal meeting. That is flatly inconsistent with his own record made the day after, about why the dismissal was unfair. Had these comments been made it is far beyond the balance of probability that they would have been referred to in the email. They are not referred to because they were not made. The claimant was not a credible witness.

[32]The claimant said that he had been a software engineer for over 26 years and worked 30 years in the industry in general. He said that his record of employment before this job and after show that he had been doing well and he had had the opportunity and luck to work for well established businesses as well as startups. He had been excited to join the respondent. He had been working in legal technology for six to seven years prior to this, and with patent lawyers in America, and he understood the requirements of the business. He thought he could bring all of these years of experience to the business. He had understood during the interview with Mr Stonehill that Mr Stonehill was not in a position to understand many things about front end development. He had not understood that within two and a half days of his starting work after a recruitment process of a month, Mr Stonehill had already decided to get rid of him before giving him an opportunity. If there had been any real issues Mr Stonehill should have given him an opportunity to fix them and told him what they were. He decided he disliked the claimant from early on. It was not about his work. There was not enough time for him to do anything in two and a half days. The respondent claimed that he did not attend two meetings, that he made a critical mistake and that he did not know Next.js. The claimant said he had proven that apart from the two meetings he missed due to setup problems there was no documentary evidence to show that he made any mistakes. Before the dismissal meeting, he had prepared a whole set of documentation from his own resources to come up with a solid plan to improve the respondent’s product’s function and to make it look expensive. When Mr Stonehill said he was going to dismiss the claimant, he initially thought he was joking but then saw that the Mr Stonehill had a straight face. When he asked why, Mr Stonehill said that he did not need to give him a reason. He demanded a reason and Mr Stonehill said that people over fifty were more vulnerable to flu and disease so best to terminate his contract early, and he was going to take on a ‘fresh out of university’ developer. The claimant said the performance issues had not been mentioned in those words. As he had been sick and gone to the doctors the respondent saw this as a good opportunity to get rid of him. The claimant said that there was no reputational damage arising from the incident on the 18 October. The respondent had failed to provide any documentary evidence, though it could easily have done so. Decision and Reasons

[33]The claimant brings a claim of direct discrimination under s13 Equality Act 2010 which defines such discrimination as follows: ‘(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’

[34]For all the Equality Act 2010 claims the burden of proof provisions as set out in section 136 apply. Section 136 reads:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

[35]The tribunal must make findings of fact and apply the legal tests to those facts. The tests for direct discrimination were discussed in Igen v Wong

[2005] ICR 931

. The test is: is the tribunal satisfied, on the balance of probabilities that this respondent treated this claimant less favourably than they treated or would have treated a younger employee.

[36]If the tribunal is satisfied that the primary facts show less favourable treatment because of age, the tribunal proceeds to the second stage. At this stage, the tribunal looks to the employer for a credible, non-discriminatory explanation or reason for such less favourable treatment as has been proved. In the absence of such an explanation, proved to the tribunal’s satisfaction on the balance of probabilities, the tribunal will conclude that the less favourable or unfavourable treatment occurred because of age discrimination.

[37]The tribunal has made a finding above that the comments alleged to be made by Mr Stonehill in the meeting of 20 October 2023 about age and employing a younger, cheaper replacement, were not made. It has, however, gone on to consider whether there are any other primary facts from which it could conclude that the claimant suffered less favourable treatment (i.e. dismissal) because of age.

[38]It was the claimant’s written evidence that Mr Stonehill’s reaction to his request for a few hours off to visit his GP, was ‘Oh shit!’, which gave him cause for concern that Mr Stonehill was unhappy, and he felt he should offer to make up the time. It is clear from the documentary evidence that the claimant was readily granted leave to see his GP, then told Mr Stonehill that he had to go for an x-ray and Mr Stonehill’s response was ‘Oh shit! I hope you’re ok.’ There is nothing in these facts, which were not properly represented in the claimant’s witness statement, from which it could be concluded that the request for leave due to illness led to the dismissal, whether because of the claimant’s age, or any other reason.

[39]It is the claimant’s case that there is no evidence that he was underperforming or that this was addressed with him and therefore this cannot have been the reason for his dismissal, and age must have been the reason. Even if the reason was not performance, this would not point to the reason being age without facts to support that conclusion. However, the tribunal has found that there is clear evidence that Mr Stonehill believed that the claimant was underperforming, in the minutes of the meeting of 13 October 2023 and the conversations he had with Stephanie Curcio.

[40]The tribunal agrees with the claimant that the respondent’s performance concerns were not clearly communicated to him before 20 October 2023 as being a major concern. It accepts his evidence that the respondent’s onboarding or new starter process was patchy, that no clear performance improvement targets were set and he was not given a chance to improve in any areas in which the respondent felt he was deficient. The tribunal accepts that the claimant was genuinely shocked to be dismissed on 20 October 2023 over performance issues without alternative courses such as a warning or an improvement plan having been put in place. However, these are matters which would be relevant to the fairness of a dismissal and this is not an unfair dismissal claim.

[41]On comparators, the claimant said at the hearing that he no longer relied on Emanual Farauanu (the software engineer engaged by the respondent before the claimant started work, but who did not start work until after the claimant’s dismissal) as a comparator. He said that he relied on a hypothetical comparator. This was determined to be a Senior Software Engineer, newly appointed and who had taken time off for a medical appointment, but who was in the age bracket 25 to 35. Mr Stonehill’s oral evidence, when asked by the claimant if he would dismiss a thirty year old for taking leave or make assumptions about their health was that he would not. However, there was no evidence that Mr Stonehill had dismissed the claimant because he had taken leave or made assumptions about the claimant’s health.

[42]As the claimant has not shown on the primary facts that he has suffered less favourable treatment because of his age, the burden of proof does not shift to the respondent to show a non-discriminatory reason for the dismissal, and the claimant’s claim fails at this point.

[43]The claimant’s claim of direct age discrimination is dismissed.

[1]The claimant’s claim of age discrimination was dismissed by the tribunal in a judgment dated 29 November 2024. In a letter dated 8 January 2025 the respondent made an application for costs in the sum of £20,000 on the grounds that the claimant had acted unreasonably in bringing the proceedings, and that the claim had no reasonable prospects of success.

The Hearing

[2]The parties filed a joint bundle of 128 pages. The respondent filed a skeleton argument. The claimant filed written submissions along with a current tenancy agreement and a previous order for possession relating to a different property. The claimant gave evidence on oath about his means. Both parties made oral submissions.

The Law

[3]Employment Tribunal Procedure Rules 2024 When a costs order or a preparation time order may or must be made 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, (b)any claim, response or reply 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 that hearing begins. (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. ...

[4]The tribunal must consider firstly whether the threshold set out in Rules 74 (2)(a) and/or (b) has been met and then go on to consider whether to make a costs order. If it decides to make an order it must assess the amount to be awarded. A tribunal may take into account the claimant’s ability to pay in considering whether to make an order and in deciding the amount (rule 82).

[5]An award of costs in the employment tribunal is the exception rather than the rule. This principle was reiterated by the Court of Appeal in Yerrakalva v Barnsley Metropolitan Borough Council and anor

2012 ICR 420

, CA. Relevant

Findings of Fact

[6]With few exceptions the claimant has worked consistently for approximately 25 years. He was unemployed for three months following his dismissal by the respondent on 21 October 2023 and has been unemployed again since late October 2025. He is not currently eligible for Universal Credit.

[7]In his most recent employment, the claimant had net pay of approximately £6000 per month. In the employment previous to that he had net pay of approximately £4700 per month.

[8]The claimant was ordered to pay rent arrears in the sum of £30,550 on 5 February 2024.

[9]The claimant and his son entered into a tenancy agreement on 6 September 2024. The monthly rent payable is £4300.

[10]The claim lives with his son and his daughter in law. His son has permanent employment.

[11]The claimant has more than one bank account. He produced statements for one account and was overdrawn by £563.33 on 15 January 2026 as shown on the most recent statement for that account.

[12]The respondent gave the claimant costs warnings, and made offers to settle on 12 August 2024, 31 October 2024 and 13 November 2024. Submissions

[13]A summary of the parties’ submissions is set out below. The submissions are not reproduced verbatim.

[14]Mr Baynham filed a skeleton argument setting out the respondent’s position on why costs should be awarded. In oral submissions he said that it was clear that the threshold test in s74 2(a) and (b) had been met and the question was one of discretion. He went through the eleven points on discretion raised in the skeleton. On means he said that the claimant’s evidence presented a confusing picture. There were payments from his account going to his daughter or other family members under a description which was his name, in circumstances where he accepts that he has other bank accounts. It was more likely that the payments were being made to another of his accounts. Statements from the other accounts were not before the tribunal. In any event, the respondent’s central submission was that the claimant had an unbroken employment record of 25 years other than for two periods of three months, and has been earning a good wage. The tribunal can be satisfied that the claimant has realistic prospects of returning to work so should not make an assessment based on the picture today. The respondent is a small startup company with three employees. Meeting unmeritorious claims has more of an impact on it than it would on a larger employer.

[15]The claimant said that the threshold had not been met. He referred to the prospects of success being discussed at the preliminary hearing and dismissed. He did not make up the comments he alleged that Mr Stonehill made. Costs are the exception not the rule and losing a case is not enough to warrant a costs order. If the case had been hopeless, it would not have been case managed in the way that it was, and the respondent is trying to justify costs through hindsight. He had dropped the unfair dismissal claim at case management stage when it was explained to him there was no prospect of success. Deciding not to accept the terms of a settlement offer is not unreasonable conduct. There were no findings of dishonesty. The tribunal should exercise its discretion to make no order. The claimant was a litigant in person facing two lawyers and a barrister. He could not afford a representative, and the hearing was difficult for him. The claimant’s means are extremely limited. He is unemployed and has no savings. He has a rent related CCJ and poor mental health. If anything is awarded it should be nominal with a payment rate of £1 a month. Decision and Reasons

[16]It was the tribunal’s clear finding following the liability hearing that the discriminatory comments attributed by the claimant to Mr Stonehill were not made. On that basis, and because those alleged comments were the foundation of the discrimination claim, the tribunal finds that the threshold by which it must consider whether to make a costs order has been met both in terms of s74(2)(a) (acting unreasonably in the bringing of proceedings) and s74(2)(b) (no reasonable prospects of success).

[17]The tribunal has considered whether or not to exercise its discretion to make an order. It has decided that the exercise of that discretion in the respondent’s favour is warranted, and that this case is one which is an exception to the general rule against costs awards. The case was one of age discrimination only and was founded on the allegation that a comment was made by Mr Stonehill, which the tribunal has found was not made. The tribunal is satisfied that it is not being influenced by hindsight and is not taking into account things that could not have been known at the outset of the litigation (Radia v Jefferies International Ltd [2020] I.R.L.R. 431 [65]), as the claimant will have known what was or was not said by Mr Stonehill before proceedings were issued. It is correct that the tribunal did not make an express finding of dishonesty, but it clearly recorded at paragraph 28 why the it concluded that the comment had not been made, and the tribunal also noted that the claimant did not properly represent the wording of an email from Mr Stonehill to him in his witness statement [paragraph 38].

[18]The tribunal has taken into account that the claimant was warned by the respondent on more than one occasion that it would apply for costs if the claim was pursued and that it made three offers to settle. The tribunal notes of course that costs warnings and settlement offers are often used as tactics in litigation, but its view here is that the claimant must have known that he was acting unreasonably or that the claim had no prospect of success.

[19]The tribunal agrees with Mr Baynham that in this case, the fact that the claimant was not legally represented is not a relevant factor. The claimant’s decision to proceed with this case was not a decision where a question of complex law or a misunderstanding of process arose that may have been explained by a professional, leading to a different decision by the claimant on whether or how to plead his claim.

[20]The tribunal has scrutinised the respondent’s evidence about costs incurred. The claimant said that was an exercise he wanted the tribunal to undertake as did not have the knowledge to analyse the fee notes. The tribunal has done so. It notes that the respondent is not in any event seeking the full amount of its costs which it puts at £25,158, but a lesser sum, amenable to summary assessment, of £20,000. The tribunal accepts that £20,000 is not an unreasonable sum to claim for the work done, based on prevailing hourly rates and the preparation required for a two day hearing.

[21]The tribunal has taken into account the claimant’s ability to pay. It is of the view that this is appropriate where the claimant has presented evidence which he says shows that he is in serious financial difficulties and is currently unemployed. Having taken into consideration the evidence it has heard on this matter its notes that the claimant clearly has potential to earn a good salary in the near future. It heard evidence that periods of unemployment recently have not exceeded a few months. It is a fact though that the claimant is currently unemployed. Whilst accepting that the claimant has financial difficulties and debts, it did not find that it had a clear picture of the extent of the difficulties, as the evidence presented was partial and at times unclear.

[22]Taking all of this into consideration the tribunal makes an award of costs to the respondent in the sum of £5000, to be paid with six months, which is to allow time for the claimant to find his next contract or permanent job Approved by: