Ms S Begum v Slough Borough Council and Mr M Jarrett: 3320578/2021

EMPLOYMENT TRIBUNALS

Case No 3320578/2021

Between

Ms S BegumClaimant

Slough Borough Council and Mr M JarrettRespondent

Before

Employment Judge Shastri-Hurst

In person for claimant

Mr T Lester (instructed by counsel) for respondent

Date 7 March 2025

JUDGMENT

[1]The second respondent is removed from these proceedings, and all claims against him are dismissed.

[2]The claimant was a disabled person under s6 of the Equality Act 2010 from 25 June 2020 through to 11 June 2021 (the date of the claimant’s dismissal).

REASONS

[1]The claimant was employed by the first respondent from 20 November 2006. At the time of her dismissal, on 11 June 2021, the claimant held the role of Early Years Deputy Manager at Chaley Grove Children’s Centre.

[2]Early conciliation against the first respondent started on 16 August 2021 and ended on 1 September 2021. Early conciliation against the second respondent started on 8 September 2021 and ended on 9 September 2021. The claim form was presented on 15 September 2021.

[3]The claimant brings claims of unfair dismissal under s98 of the Employment Rights Act 1996, and of discrimination arising from disability under s15 of the Equality Act 2010. The issues are fairly narrow and have previously been set out by Employment Judge Brown on 6 October 2022. In short, the complaints are limited as follows:3.1 Unfair dismissal – the claimant alleges that dismissal was outside the range of reasonable responses;

3.2 Discrimination arising from disability – the unfavourable treatment alleged is

(1) the instigation of the disciplinary process and

(2) dismissal.

[4]The claimant represented herself, and the respondents were represented by Mr Lester: I am grateful to them both for their assistance throughout this hearing. In determining the issues today, I had before me a bundle of 310 pages. I also heard evidence from the claimant, who was cross-examined by Mr Lester. The claimant had not provided a disability impact statement. Having heard submissions from both parties on this, and Mr Lester stopping short of applying for any form of sanction to be placed on the claimant for this failure, I took the claimant through some of the medical evidence and asked some questions before cross-examination. I also heard closing submissions from both parties, as well as having sight of Mr Lester’s skeleton argument. Issues

[5]This matter was listed for an open preliminary hearing before me in order to consider three issues:5.1 Whether the claimant was disabled at the relevant time by way of her mental health condition;

5.2 Whether the second respondent should be removed from these proceedings; and,

5.3 Whether a deposit order should be made against the claimant’s claims.

[6]The issue of a deposit order is dealt with in a separate document. Removal of second respondent

[7]At the preliminary hearing on 6 October 2022, Employment Judge Brown told the claimant that, at this hearing, she would need to be able to explain how her complaints of disability discrimination are pursued against the second respondent (see paragraph 12 of that Order).

[8]Just to clarify this, it is only an employer that may be the respondent to an unfair dismissal claim. That is why the only claim to which the second respondent could be a respondent is the discrimination claim.

The Judge on 6 October 2022 stated that it would be for the Tribunal to determine:

[9]“whether or not [the discrimination claim against the second respondent] can proceed having regard to the pleaded claim, any proper further and better particulars and/or application to amend, and having regard to the prospects of success”.

[10]I have the power under r34 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) to remove any party that is “apparently wrongly included”.

[11]The claimant has not provided any adequate further and better particulars. I say this, noting that the claimant did provide further detail in response to an early request from the Tribunal - [58]. However, it is clear from Employment Judge Brown’s orders and case summary from 6 October 2022 that he did not consider that document to contain pleaded complaints, given the lack of specific dates. In any event, the Judge found that the allegations were very old, and had no reasonable prospect of success – see paragraph 11 of his Order.

[12]The claimant has made no application to amend her claim. The claimant made numerous allegations today during the course of her evidence and submissions. The claimant stated today, and for the first time, that the second respondent caused her dismissal, and bullied anyone with mental health conditions. She asserted that the second respondent had too much influence over the disciplinary process, being in numerous of the disciplinary meetings. The claimant also stated that the decision maker was managed by the second respondent.

[13]Although the claimant made these allegations (and more) against the second respondent in the hearing today, none of those allegations are claims currently before the Tribunal. It is the claim as it currently exists that I must consider.

[14]I therefore go back to the claim form itself to see what the claimant originally said about the second respondent. The only mention of the second respondent is as follows: “I then had to speak to the service lead and he made me feel very uncomfortable with comments he made about sickness previously, which is why I didn’t feel like discussing my sickness earlier with the workplace, as I was worried they would do this”.

[15]There is nothing in the claim form that links the second respondent to the instigation of the disciplinary process, or the decision to dismiss. In fact, I note that the respondent says that the disciplinary officer who made the decision to dismiss the claimant was Johnny Kyariacou. There is no allegation before the Tribunal that the second respondent influenced that decision to dismiss.

[16]Of relevance is also the fact that the first respondent is not seeking to run the statutory defence under s109 of the Employment Rights Act 1996. In other words, if it were to be found that the second respondent had acted unlawfully, the first respondent accepts that it would be vicariously liable for his actions. Therefore, if there was any unlawful act by the second respondent, the first respondent would pay any figure awarded to the claimant for that unlawful act. It is therefore not necessary for the second respondent to remain a party in order to ensure that the claimant has a route to recover any award made.

[17]In order to make the decision as to whether the second respondent should be removed, I need to consider the prejudice to each side, and the balance of fairness.

[18]If the second respondent remains a party, then he will be named on proceedings and any judgment. He will need to be involved in the litigation more so than if he were simply a witness for the first respondent, in a claim in which, currently, no allegation is made against him personally.

[19]If the second respondent is removed as a party, the claimant loses nothing. The first respondent accepts that it is vicariously liable for the second respondent’s actions, and, if the claimant were to succeed, the first respondent accepts that it would be responsible for paying to the claimant any award made. I therefore see no prejudice to the claimant in these circumstances, particularly where, on her current claim contained in the claim form, the second respondent does not appear to be an alleged perpetrator.

[20]On balance, I consider that there is no good reason for the second respondent to remain a party. On the existing claim there is in fact no allegation against him. The claimant loses nothing by his removal.

[21]I therefore order that the second respondent be removed from these proceedings. A judgment dismissing the claims against him will be issued. Disability status Issues

[22]The issues to be determined regarding whether the claimant was at the relevant time a disabled person are set out below:22.1 Did the claimant have a mental impairment, namely mental health issues?

22.2 Did that impairment have a substantial adverse effect on her ability to carry out dayto-day activities?

22.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

22.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

22.5 Were the effects of the impairment long-term? The Tribunal will decide:22.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

22.5.2 if not, were they likely to recur? Law

[23]The legal definition of “disability” is set out at section 6 of the Equality Act 2010 (“EqA”), and is as follows: “(1) a person (P) has a disability if –(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

[24]In order therefore to determine whether a claimant has a disability, the Tribunal must ask itself four questions – Goodwin v Patent Office

[1999] ICR 302

:24.1 Did the claimant have an impairment (mental or physical) at the material time;

24.2 Did the impairment affect his ability to carry out normal day-to-day activities;

24.3 Was the adverse effect substantial; and,

24.4 Was it long-term (had it lasted, or was it likely to last, at least 12 months)?

[25]In order to assist with answering these questions, Tribunals have the benefit of two pieces of guidance, namely the “Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability” (“the Guidance”) and Appendix 1 of the Code of Practice on Employment published by the Equality and Human Rights Commissions (“EHRC”) (“the Code of Practice”). Impairment

[26]The important issue to establish in relation to an impairment is the effect, rather than the cause. This is clear from the Guidance.

[27]A distinction is to be drawn between a reaction to an adverse and tragic life event, and something that becomes an impairment. In Igweike v TSB Bank Plc

[2020] IRLR 267

, the Employment Appeal Tribunal (“EAT”) upheld the Tribunal’s decision that the claimant’s bereavement regarding the death of his father was not an impairment. The EAT held that: “in some cases bereavement may lead to ordinary symptoms of grief that do not bespeak any impairments. In others, it may lead to something more profound which is, or develops into, an impairment over time”.

[28]If, on the facts, this distinction proves a difficult line to draw, then it may be appropriate to consider the question of adverse effect first – J v DLA Piper UK LLP

[2010] IRLR 936

[2010] ICR 1052

[29]The respondent in this case argues that, if the claimant has suffered anything, it has been an adverse reaction to a life event, which does not constitute an impairment.

[30]For a claimant to succeed, the burden is on them to demonstrate that, on the balance of probabilities, they had an impairment at the relevant time. Normal day-to-day activities

[31]The Guidance contains a non-exhaustive list of activities that fall within the scope of “normal day-to-day activities” at paragraph D3, which states: “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general workrelated activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying gout interviews, preparing written documents, and keeping to a timetable or a shift pattern.”

[32]Domestic case-law has now confirmed that it is appropriate to consider the effect of an impairment on a claimant’s professional life (such as the ability to undertaken examinations and assessments), following the case-law from Europe – Paterson v Commissioner of Police of the Metropolis

[2007] IRLR 763

and Chacón Navas v Eurest Colectividades SA C-13.05,

[2006] IRLR 706

. In the case of Chief Constable of Norfolk v Coffey

[2019] EWCA Civ 1061

Underhill LJ held that the phrase “working life” was preferable to “Professional life”. Substantial adverse effect

[33]Section 212(2) EqA sets out the meaning of “substantial” as “more than minor or trivial”. In determining whether the effects are substantial, the relevant test is what a person cannot do, as opposed to what they can do. It was held in Paterson that the relevant question to ask is: “how the individual carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial”.

[34]In determining whether the adverse effect is substantial, the effect of any medication or treatment on that effect must be ignored – paragraph 5(1) Schedule 1 EqA. Long-term

[35]The definition of “long term” is found in section 2 of Schedule 1 to Part 1 of the EqA, which provides as follows: “(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

[36]In this context, “likely” means “could well happen” - SCA Packaging Ltd v Boyle

[2009] UKHL 37

. It does not mean “it is more probable than not that it will happen” - the Guidance paragraph C3.

[37]The issue of whether effects are likely to last at least 12 months needs “to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The Tribunal is not entitled to take into account events that happened after the date of the alleged discrimination” – All Answers Ltd v W [2021 EWCA Civ 606],

[2021] IRLR 612

, para 26. Findings of fact

Introduction

[38]I make findings below only to the extent that they are relevant to the issue of disability. Any findings are made on the limited evidence I have heard and seen today, without the benefit of hearing and seeing all the evidence in the case that will be available at a final hearing. I therefore do not seek to bind any future tribunal by any findings of fact set out below.

[39]The claimant was employed by the respondent from 20 November 2006. At the time of her dismissal, on 11 June 2021, the claimant held the role of Early Years Deputy Manager at Chaley Grove Children’s Centre.

[40]The claimant says that she suffers from mental health conditions amounting to a disability, and has done since 2018. These conditions were exacerbated by the Covid-19 pandemic from Spring 2020. The claimant was not ready to inform her employer of her difficulties, and so informed them instead that her daughter was seriously ill, and that the claimant had to work from the hospital in which her daughter was staying. The claimant states that she was scared to disclose her mental health issues, as anyone who had such issues was bullied by the second respondent. She had been using her daughter’s health as a cover since 2018.

[41]It is the respondent’s case that, on 24 April 2021, a colleague met the claimant’s husband, which led to a conversation in which the claimant’s husband disclosed that the claimant was not at her daughter’s bedside in Birmingham Children’s Hospital, but was at home, and had been since November 2019. The claimant disputes that this is how the conversation went. It is not for me at this stage of proceedings to make findings about this conversation.

[42]There came a stage in May 2020 when the claimant was signed off as not fit to work, due to “mixed anxiety and depressive disorder”.

[43]On 29 May 2020, the respondent wrote to the claimant setting out what conduct she was alleged to have committed. This was the commencement of a disciplinary process against the claimant on the basis of a dishonesty matter, based on her deception around her daughter’s health.

[44]The disciplinary investigation concluded on 26 March 2021, and the disciplinary hearing took place over two days, on 4 and 20 May 2021. On 11 June 2021, the claimant was dismissed without notice. The respondent says that the reason for the claimant’s dismissal was gross misconduct or, in the alternative, some other substantial reason, namely a breakdown in trust and confidence. The claimant appealed the decision to dismiss, but that appeal was unsuccessful. Disability

[45]The relevant chronology for the purposes of the disability issue can be split into three separate periods of time, as follows:45.1 October 2018 to June 2019;

45.2 June 2019 to May 2020;

45.3 May 2020 to June 2021.

[46]Matters pre-dating October 2018 do not have a bearing on the issue of disability, as the claimant has not claimed that she had any mental health conditions prior to October 2018. October 2018 – June 2019

[47]The claimant was signed off as not fit to work by reason of a stress-related problem from 25 October 2018 to 17 May 2019 – [158-163] & [281-282].

[48]In November 2018, the claimant started taking Zopiclone, which was a treatment for her sleep problems. During her visits to the GP during November 2018, the claimant explained to the GP that her daughter was unwell, and in hospital with a lung condition – [264]. Specifically, on 26 November, the claimant told her GP that her daughter was on a ventilator: the claimant told me today that this had not been true.

[49]In February 2019, the claimant was prescribed Citralopram, an antidepressant, again having told her GP that her daughter was on a ventilator. The claimant’s account that her daughter was on a ventilator was repeated to the GP throughout this period.

[50]The claimant seems to have been on some form of antidepressant from February 2019 through to April 2019, at which point there was a break during which the claimant was off medication for around 1 year.

[51]She returned to work on 20 May 2019, then was briefly off sick again from 3 to 23 June 2019, again for a stress-related problem - [164]. The claimant then returned to work on 24 June 2019. June 2019 – May 2020

[52]As mentioned, the claimant was back at work from 24 June 2019, and off any medication. She remained at work for 10 months without needing to see her GP, until 14 April 2020, at which point she attended her GP surgery. It was noted on that occasion that the claimant had been feeling better and so had not taken her medication. The GP recorded “see last issue all meds – 1y back!!!”.

[53]The claimant told me that she in fact had started taking medication again, using left over pills from her last prescription from April 2019. The claimant’s evidence was initially that she just took the odd one when she needed to, but that she was weaning off the medication. Then her evidence expanded slightly to be that the claimant would have 4 bad days a week that would require her to take one of the pills that she had left. I find that the claimant’s original evidence on this point is more likely to be true, and that she then exaggerated her evidence slightly. In other words, I find that the claimant had the odd bad day in the period April 2019 to April 2020, when she would take a pill to assist. This is more in line with the claimant using up an old prescription: if she had been having bad days 4 days a week, and needing to take something on those days, she would have run out of medication very swiftly, given that she had no new prescriptions for around 12 months.

[54]As set out above, 24 April 2020 was the day on which the respondent alleges that a colleague ran into the claimant’s husband, at which point the respondent became aware that the claimant had not been telling them the truth about her location or her daughter’s health.

[55]On that same day, the claimant rang her GP at 1727hrs asking for a letter for her employer to state that her daughter needed to shield against Covid-19. The GP recorded that there were no hospital letters on their system regarding the claimant’s daughter since May 2017, and therefore they would not be able to provide a letter.

[56]The claimant was signed off as not fit to work from 4 May 2020 - [165]. May 2020 – June 2021

[57]The claimant remained off sick from 4 May 2020 through to the effective date of termination, on 11 June 2021.

[58]The fit note relating to the claimant’s period of absence commencing on 4 May 2020 stated that the reason for her absence was “mixed anxiety and depressive disorder” - [165]. The fit notes that followed set out the reason for absence as being “severe depression (possible PTSD)”, “PTSD with depression” or “depression and anxiety” - [247]-[258].

[59]In terms of evidence of the effects of her mental health on the claimant, I note firstly that she was off work a year prior to her dismissal.

[60]On 13 June 2020, there is a record of an out of hours call at [166]. This lists the following symptoms:60.1 Sleep up and down;

60.2 Very tearful;

60.3 No toshi/si (threats of self-harm or suicidal ideation) and “denied any previously as well”;

60.4 The clinical code used at that time was “depressed/anxiety states”.

[61]On 15 June 2020, the claimant had an urgent referral to a consultant psychiatrist with an “ongoing history of depression”. The consultant noted that “I am suspecting” post-traumatic stress disorder (“PTSD”) - [169].

[62]By the next day, 16 June 2020, the claimant had self-referred to Talking Therapies, who were unable to assist as she was under a different service - [174].

[63]On 25 June 2020, the respondent’s Occupational Health Therapist (“OHT”) produced a report, which is at [175]. In that report the OHT recorded that the claimant was diagnosed with depression 3 years previously, although she was selfmanaging stress related symptoms in the years previous to this. The OHT records the claimant’s symptoms at this time as being:63.1 Feeling withdrawn and emotional with continuing low mood;

63.2 Palpitations;

63.3 Rushing mind;

63.4 Tumbling thought patterns;

63.5 Intrusive dreams;

63.6 Poor levels of interrupted sleep.

[64]On 3 July 2020, the claimant’s GP referred her to the consultant psychiatrist - [179].

[65]On 9 July 2020, the claimant was the subject of a common point of entry (“CPE”) assessment by a mental health practitioner - [181]. This assessment states that the claimant suffered at that point from mild anxiety and PTSD due to historic events, that was triggered by the pandemic and a recent death in the family - [183].

[66]I note that “stressors” include “facing disciplinary action at work as has been too scared to reveal her symptomology”.

[67]Symptoms at the time of this assessment were recorded as follows [182-183]:67.1 Mood 2/10 poor energy, motivation, socially isolating, pressure of controlling severe distress and tears associated with flashbacks and panics;

67.2 At consultation tearful and distress;

67.3 Worried that she was not able to control images, worried about Covid, worried about work as she was scared to tell people about why she is not fit to work;

67.4 Concentration poor, unable to focus, her mind keeps wandering to distressing images;

67.5 Appetite very poor, the claimant was hardly eating, and had lost weight;

67.6 Sleep very poor due to flash backs and visions of dead people;

67.7 Flashbacks/vivid images;

67.8 Anxiety – regular panic attacks with heart palpitations & breathlessness, despite putting in place strategies to assist in this respect.

[68]Under the sub-heading of “risks’” it was noted that the claimant presented “no risks of self-harm”.

[69]On 12 August 2020, at [188], a referral was accepted by the Enhanced Trauma Pathway (ETP) for the claimant.

[70]In September 2020, the claimant was referred to Talking Therapies by Berkshire Traumatic Stress Service, and undertook a series of 15 sessions with them - [222- 224].

[71]On 23 November 2020, at [201], the claimant’s GP wrote a letter stating that the claimant is known to suffer from PTSD and depression. The GP went on to state that the claimant was continuing on regular medication for this and was having therapy too.

[72]On 24 December 2020, the OHT produced a follow-up report, which indicated that the claimant at that point was likely to qualify as a person with a disability under s6 EqA - [205].

[73]On 5 January 2021, at [209], a “Gateway Adult Mental Health Referral Form” was completed for the claimant.

[74]The claimant was dismissed on 11 June 2021.

[75]I have seen two letters from Talking Therapies, dated 14 and 15 June 2021 respectively – [220/222]. In the 14 June 2021 letter, it is noted that the claimant was experiencing suicidal thoughts by this point. In the 15 June 2021 letter, it is recorded that the claimant was undergoing CBT sessions to attempt to reduce symptoms of PTSD. At this point, work matters and the Tribunal proceedings were specifically mentioned as examples of external triggers preventing progression of the therapy. On 15 June, the claimant’s symptoms are recorded as follows:75.1 Flashbacks;

75.2 Nightmares;

75.3 Hyper-vigilance;

75.4 Avoidance (people, places, activities);

75.5 Emotional numbing;

75.6 Experiencing suicidal thoughts.

[76]On 29 June 2021, the claimant’s GP wrote a letter, at [225], stating that she was experiencing “ongoing significant mental health issues...first consulted for these in 2018, when the presentation was documented as stress related issues, and seems this was an initial presentation of her depression and post-traumatic stress disorder which was diagnosed in 2020.”

[77]The claimant’s final CBT appointment was on 6 July 2021, having undergone a course of 15 sessions – [224]. At this stage, her symptoms remained at the severe range, but it was agreed that any further treatment would be halted until September as the claimant had “a lot going on”, including the Tribunal process, and several family bereavements. The record of her PHQ9 and GAD7 scores across her CBT sessions, from September 2020 to July 2021 range from (PHQ9) 20-27 and (GAD9) 19-21, both of which indicate severe depression and anxiety. Conclusions

Credibility

[78]The respondent has made the submission that the claimant’s credibility is so damaged that I cannot place any great weight on any evidence she has given today, and this is compounded by the lack of witness statement provided by the claimant for the purpose of this hearing.

[79]The respondent relies on the following points to support this assertion:79.1 The claimant accepted during the disciplinary process that she had lied to the respondent about her daughter’s health;

79.2 The claimant told the same untruths to her GP, about her daughter being on a ventilator (e.g. [261], [264]), which today she accepted was untrue;

79.3 At [175], the claimant told the OHT that she had been suffering with depression for 3 years, when in fact this (on the sick notes) was not the case;

79.4 The respondent says that there has been an expansion of the claimant’s allegations. On this point, I accept that, given the lack of detail in the claim form, I have heard many allegations made against the second respondent today. I note that there is no application to amend to include any such allegations at this stage.

[80]I remind myself that, just because an individual is found to have lied on one matter, does not mean that they will have lied on another (drawing a parallel from the Lucas direction in criminal courts).

[81]Although it concerns me that the claimant did not provide a witness statement today, despite the tribunal’s clear guidance, and despite being reminded by the respondents’ solicitors, this is unfortunately not particularly unusual. Many litigants in person do not understand the need for them to provide a witness statement, despite the clear guidance sent in the Tribunal’s case management orders.

[82]I do accept that the claimant has, on occasion, exaggerated or expanded her evidence (specifics are set out in this judgment).

[83]However, I am not satisfied that it would be the correct approach to simply disregard the claimant’s evidence as being incredible. As I have said, it is not as straight forward as saying that she has lied on one point and so must have lied on everything else. Where there is divergence between the claimant’s evidence and the medical evidence, I prefer the medical evidence, being more objective, and (mainly) contemporaneous. Impairment

[84]The claimant had a mental impairment, namely anxiety and depression, from around 4 May 2020. This became PTSD at some point in the coming months.

[85]Although the claimant’s symptoms were initially triggered and then exacerbated by various life events (including bereavements and Covid-19) over the course of a number of years, I find that as of May 2020 (but not before), the claimant consistently suffered something more profound that a short live reaction to life events – Igweike v TSB Bank Plc.

[86]The respondent argues that any mental health issues from May 2020 onwards are in fact due to the adverse situation at work, and therefore are reactionary and should not constitute an impairment. I do not agree with this. Evidently, the situation at work was one factor (as recorded in some of the medical evidence). However, I accept that there were other factors that triggered the claimant’s mental health, including family bereavements and the Covid-19 pandemic.

[87]In case I am wrong on this, I move on to consider the existence and extent of adverse effects of the claimant’s mental health, as suggested in J v DLA Piper. Substantial adverse effect on normal day-to-day activities

[88]From May 2020, the claimant was signed off as unfit to work due to anxiety, depression and then PTSD. Being able to attend work is a normal day to day activity, and so the inability to do this for any significant length of time is, I find, a substantial adverse effect.

[89]Throughout the period of May 2020 to the time of the claimant’s dismissal, there are various medical documents that record symptoms she suffered, including for example sleep problems, low mood, poor appetite. These are all normal day-to-day activities under the Guidance.

[90]In terms of the severity of the effects, I note that the claimant was on some form of antidepressant for a sustained period of time, from April 2020 onwards. The fact that the claimant’s GP was content to keep her on that medication (trialing different varieties to find the most efficacious one) for any length of time suggests in itself that, being off that medication would lead to the effects on her daily life being even more substantial and adverse.

[91]The substantial nature of the effects is corroborated by the claimant’s PHQ9 and GAD7 scores for the period September 2020 to July 2021 (again, whilst she was on medication), which indicate severe depression and anxiety.

[92]In terms of the period before May 2020, I have limited contemporaneous evidence from medical experts prior to May 2020. All references to the long nature of the claimant’s symptoms appear in medical documents dated after May 2020, and are based upon the claimant’s recollection of her symptoms, as opposed to experts’ observations from prior to May 2020. I also note that the claimant had a spell of around 10 months (from June 2019 to April 2020) with no medication and no visits to the GP, during which time she was able to attend work and perform her job. Further, the claimant’s own evidence today was that, although she was experiencing problems from 2018, there was a distinct step change when the Covid-19 pandemic started in March 2020.

[93]I therefore conclude that, prior to May 2020, the adverse effects of any impairment were not substantial. However, from May 2020, I am satisfied that the effects were of a substantial and adverse nature. Long-term

[94]I have found that the claimant suffered an impairment that had a substantial adverse effect on her ability to carry out normal day-to-day activities from May 2020. It is therefore only by May 2021 that the effects had lasted for at least 12 months, as is required by s2(1)(a) of Schedule 1, Part 1 EqA.

[95]The two acts that form the basis of the claimant’s claim are the disciplinary process (commenced on 29 May 2020) and the claimant’s dismissal on 11 June 2021.

[96]I must therefore consider whether, at the time of the commencement of disciplinary proceedings on 29 May 2020, and through to May 2021, the effects of the claimant’s impairment could well have lasted for 12 months, under s2(1)(b) of Schedule 1, Part 1 EqA.

[97]To determine this point, I consider what a GP is likely to have said in May 2020, if asked whether the claimant’s symptoms would be likely to last at least 12 months. I remind myself of the evidence I have from around this time:97.1 The claimant went back on Citralopram on 14 April 2020;

97.2 At the beginning of May 2020, the claimant was signed off as unfit to work for a period of 2 weeks with mixed anxiety and depressive disorder - [165].

97.3 Matters then seemed to escalate in June 2020, with evidence of intervention:97.3.1 On 13 June 2020 the claimant made an out of hours call, for which I have seen the incident report - [166];

97.3.2 On 15 June 2020 the claimant’s GP referred her to a Consultant Psychiatrist, asking for contact “as soon as possible” - [169];

97.3.3 On 25 June 2020, an OHT report was prepared in which it was noted that there was no indication of a return to work date, and that time was needed for the claimant’s medication and mental health team support to have an impact. It was also noted that, even when the claimant did return to work, she would need a phased return – [175].

[98]Based on this evidence, I find that, by 25 June 2020, the claimant was likely to have substantial adverse effects lasting at least 12 months.

Conclusion

[99]I find that the claimant was disabled by way of anxiety and depression from 25 June 2020, through to her dismissal on 11 June 2021.

Conclusion

[1]The deposit of £30 paid by the claimant under rule 40(1) of the Employment Tribunal Rules must be paid to the respondent under rule 40(7)(b);

[2]The claimant shall pay the respondent’s costs in the sum of £3000.

Conclusion

[1]The issues: At a final hearing held at Reading between 16 and 19 July 2024, a Tribunal comprising myself, Mr T Hough and Mr J Appleton dismissed the claimant’s complaints of unfair dismissal and of disability discrimination under section 15 of the Equality Act 2010. There were no other complaints before us. At a previous hearing, on 7 February 2023, Employment Judge Shastri – Hurst had directed the claimant to pay a deposit of £15 in respect of each of those complaints as a condition of continuing to advance them, and she had paid those amounts accordingly.

[2]At the end of the final hearing, the respondent made an application for costs and for payment of the deposit to it under what is now rule 40(7) of the Employment Tribunal Rules 2024 (ET Rules).The attached costs schedule had been provided to the claimant on the first day of the hearing, 16 July 2024, but the written submission was produced on the last day.

[3]Given the time by which the application was made, the limited opportunity that the (unrepresented) claimant had to consider the details of the application and her wish to refer to her means, the tribunal gave directions to enable the costs application to be dealt with. The parties agreed orally that the application could be dealt with by me sitting alone “on the papers” to avoid the time and costs of a separate hearing.

[4]The parties subsequently provided confirmation in writing that they agreed to the issue of costs being dealt with in this way.

[5]The respondent’s application is made under what are now rules 40(7) and 74 of the ET rules.

[6]It is clear from paragraph 2 of the respondent’s application that it is made not only based on rule 40(7) but also on the basis that the claimant’s claims had no reasonable prospect of success under rule 74(2)(b) – previously rule 76.

Relevant Law

[7]Rule 40(7) provides: (7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a)the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b)the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise, the deposit must be refunded. This has been held to mean that, whilst in the circumstances set out in the Rules the deposit must be paid to the other party (here, the respondent), although the claimant would be treated as having pursued the specific allegations or arguments unreasonably after the deposit order is made, the Tribunal will still have to consider its discretion as to whether, and if so in what amount, to order costs against the claimant – see Oni v Unison, 2015 ICR D17. 6. Rule 74 provides as follows, so far as relevant: 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... (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,

[8]Rule 76 now provides: 76.—(1) A costs order may order the paying party to pay— (a)the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b)the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i)in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles.

[9]According to rule 82: 82. In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

[10]Although the numbering of the ET Rules has changed, in respect of these matters there has been no substantive change, and I consider that the case law decided under the 2013 ET Rules is therefore applicable.

[11]Although, where the Tribunal finds that a party has acted unreasonably in the bringing or conduct of the proceedings or that a claim had no reasonable prospect of success it must go on to consider making a costs order, it has a discretion as to whether to do so and as to the amount of any award. Awards of costs are still exceptional in the Employment Tribunal. Costs are intended to be compensatory and not punitive.

[12]If the relevant ground is made out, the Tribunal must go on to consider whether it is appropriate to exercise its discretion in favour of the party seeking costs. According to the case of Yerrakalva,

[2011] EWCA Civ 1255

, the tribunal must look at the whole picture, taking account, for example, of the nature, gravity and effect of the unreasonable behaviour which it has identified.

[13]This means that the tribunal must identify(a) what conduct is unreasonable,

(b) what was unreasonable about it, and

(c) must consider its nature, gravity and effect. It is not necessary to identify a direct causal link between the unreasonable conduct and any particular aspect of the proceedings; instead, a “broad-brush” approach should be taken, and the situation should be considered overall.

[14]Although the same test applies to represented parties and unrepresented parties, we should bear in mind that unrepresented parties such as the claimant are unlikely to be as knowledgeable about the law and procedure as represented parties and are unlikely to be as objective about the merits of the case.

[15]The tribunal may take account of the paying party’s ability to pay both in deciding whether to order costs and the amount which should be awarded, if any

[16]In making my decisions I must give effect to the overriding objective in Rule 3 of the Tribunal rules. This means that I must deal with the case fairly and justly. This includes ensuring that the parties are on an equal footing, dealing with the case in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility, avoiding delay (so far as this is compatible with proper consideration of the issues) and saving expense. I have also taken account of the caselaw and examples quoted by the respondent. Procedure

[17]In accordance with the tribunal's directions, the claimant provided a statement on the 13th of September 2024 to which she attached a limited number of Bank statements and other financial information about her outgoings. Unfortunately, when the documents were originally sent to me, the claimant’s statement and attachments from the 13th of September 2024 were not sent to me by the administration. I followed this up when I was next at work on the 6th of January 2025 and received a response from the administration on the 24th of January. Unfortunately, this attached the incorrect e-mail, and I followed this up again when I was at the tribunal on the 6th of February 2025. After a further follow up e-mail from me, the correct e-mail and attachments were finally forwarded to me on 4 March 2025. The respondent responded to the claimant's e-mail of the 13th of September 2024 on 4th of October 2024, providing a further copy of its application for costs and detailed costs schedule. A hard copy had been provided to the tribunal and the claimant on the final day of the hearing. The claimant took the opportunity to respond, as permitted by the directions, on the 18th of October 2024.

[18]The documents were, initially, incorrectly forwarded to Employment Judge Reindorf, who pointed this out on the 7th of November 2024, and were first referred to me on the 13th of December 2024. I became aware of the referral on the 19th of December 2024, but due to absence over the festive season. I was not able to attend to them until the 6th of January 2025, and the matter then proceeded as set out above. I apologise to the parties for the delay in completing this matter, although most of it was outside of my control. Relevant facts

[19]At a hearing on the 7th of February 2023, Employment Judge Shastri-Hurst found that the claimant was disabled from the 25th of June 2020 onwards and therefore that she was disabled when each step of the disciplinary process took place, except for the first step of sending her a letter containing allegations on the 29th of May 2020. Employment Judge Shastri-Hurst clearly set out why she thought that the claimant’s claim of discrimination arising from disability had little reasonable prospects of success at paragraph 14 of the reasons for the deposit order. The respondent said that it dismissed the claimant because of a deception that she carried out between about the autumn of 2018 and April 2020; the claimant had informed the respondent that her young daughter was seriously ill, and had used her daughter’s alleged ill health and hospital treatment as reasons for not coming to work. The claimant accepted during the disciplinary process that her daughter had not been ill, or in hospital, at all.

[20]The claimant sought to argue, therefore, that the reason for her dismissal (“the deception”) was something which arose in consequence of her disability. Employment Judge Shastri Hurst found that the deception was over by the 27th of April 2020, when the claimant admitted it. She also found that the claimant was not disabled within the meaning of the Equality Act until the 25th of June 2020. The judge held that the deception could not have arisen in consequence of the claimant’s disability as she was not disabled at the relevant time. The judge found that as a result the complaint under section 15 of the Equality Act 2010 had little reasonable prospect of success. That is the basis upon which she ordered the claimant to pay a deposit

[21]At the final hearing, we dismissed the complaint under section 15 of the Equality Act for substantially the same reasons as Judge Shastri Hurst – as both parties agreed that the reason for the claimant's dismissal (and the disciplinary action which preceded it) was the claimant’s deception, which occurred at a time when the claimant was not a disabled person within the meaning of the Equality Act 2010, it is not possible that the disciplinary action and the dismissal were due to something arising in consequence of the claimants disability. She did not have a disability at the relevant time.

[22]In respect of the unfair dismissal claim, the claimant told Judge Shastri Hurst that the only basis upon which she was complaining of unfair dismissal was that the sanction of dismissal was too harsh, that is, that it was outside the band of reasonable responses to the conduct in question.

[23]At paragraphs 19 and 20 of the deposit order, the judge set out the relevant test in that respect, that is, whether no reasonable employer would have dismissed in the same circumstances. She points out that the relevant circumstances involve the claimant misleading the respondent for more than a year in relation to a matter which is not trivial. She points out that the claimant told the respondent that her daughter was severely ill in hospital in order to hide her own alleged health issues from them. The judge found that the serious and sustained nature of the deception meant that the claimant had little reasonable prospect of success if she pursued the argument that no reasonable employer would have dismissed her.

[24]At the final hearing, we found that in the circumstances, the sanction of dismissal was within the reasonable range of responses and therefore that a hypothetical reasonable employer could have dismissed the claimant. This is substantially the same reason for which Judge Shastri Hurst made the deposit order.

[25]In addition, at the final hearing, the claimant sought to argue that the procedure adopted by the respondent in relation to the dismissal and disciplinary process was outside the reasonable range, in other words again that no reasonable employer would have acted as the respondent did. Employment Judge Hawksworth permitted the claimant to add these issues at a subsequent preliminary hearing, in January 2024.

[26]At that preliminary hearing, the claimant had not specified exactly how she said that the process was unfair. At the hearing before us, she raised numerous points about procedure which had never been raised before. We found that those issues were without merit for the reasons that we gave at the time and therefore found that the process adopted by the respondent was within the reasonable range. Those arguments added little to the claimant’s case, and therefore I conclude that we rejected the unfair dismissal claim for substantially the same reasons as did Employment Judge Shastri Hurst.

[27]During the hearing, we heard evidence about the claimant’s young family, which is now dependent on her husband's income. I considered it appropriate to take account of the claimants means under rule 80, as she wished me to, as a result.

[28]In accordance with the tribunal’s directions, the claimant provided various financial documents, including details of two HSBC bank accounts held by herself, payments to her husband by Uber, a HSBC account ending 703 for her husband and of a Natwest account ending in 737.

[29]These show that the claimant and her husband appear to pool their finances. The claimant states that her mortgage payments are 939.11 per month and this is verified by a mortgage statement dated the 3rd of March 2024. In addition, the ground rent is £115.00 per month and the family has the usual utilities bills of which I have seen some evidence.

[30]Whilst the family's finances are tight according to the evidence I have seen, the claimant’s HSBC account ending 8826 was marginally in credit (£49.86) by the 23rd of August 2024. That ending 7938 was also marginally in credit as of the 6th of September. This appears to be a joint account. Her husband's bank account ending 0703 was in credit to the tune of £926.47 by the 27th of July 2024. There was a transfer of £400 from the account ending 7938 into her husband’s account ending 0703 in July 2024.

[31]The claimant’s husband works as an Uber driver. The claimant points out that his income is not guaranteed, and that vehicle repairs are sometimes required, but nevertheless the family are managing without recourse to benefits aside from child benefit. It seems that the claimant's husband’s income has increased since the time of the deposit order, as he received a payment of £1789.90 in July and just over £2015 from Uber in August 2024. The family is repaying a loan, partly through the claimant’s NatWest account but the above balance figures take account of this. The loan has been spent on bills and other repayments.

[32]Whilst, on the evidence provided, the family's finances are tight, I note that there was payment to the value of more than £600 to clothing stores in the month of July 2024 from the husband's HSBC account ending 0703. This seems surprising given the evidence in the claimant statement of the financial struggle that the family is experiencing, and I am not satisfied, on the balance of probabilities, that a full picture of the family’s finances has been provided APPLICATION OF LAW TO FACTS

[33]I have set out above my finding that the tribunal dismissed the claims of discrimination arising from disability and of unfair dismissal for substantially the same reasons given in the deposit order. This means that the threshold set out in Rule 40(7) is made out unless the claimant can show that she did not act unreasonably in pursuing those specific allegations or arguments.

[34]I do not consider that she has done so. In her statement provided in the context of the costs application, the claimant stated that she had relied on advice from her trade union representative Mr Rawlings, and that she is not legally represented as she could not afford legal fees. She was not formally represented by her trade union, although her union representative attended to give evidence on her behalf.

[35]I appreciate that the claimant is not represented and that she is likely to be less objective than a professional representative would be and would not have similar knowledge of the tribunal’s rules and procedures and the relevant law.

[36]Judge Shastri-Hurst’s deposit order, however, which starts at page 148 of the bundle for the main hearing, was very clear in its reasoning and it was explained to the claimant what the consequences of that order could be if she did not succeed. At paragraph 2, for example, it says that the rationale of a deposit order is to warn the claimant against pursuing claims with little merit, which may leave them open to a risk of costs should they proceed with the claim and lose on the same basis as identified as the reason for making a deposit order.

[37]I consider that Judge Shastri Hurst's explanation of why the order was being made was very clear, see for example paragraphs 14 and 15 regarding discrimination arising from disability and paragraphs 18-20 regarding unfair dismissal.

[38]The claimant is not unsupported in this matter. As she has pointed out, she has sought advice from her trade union representative throughout and has the support of her family. Whatever the position prior to the making of the deposit order, which was sent to the parties on the 11th of April 2023, I consider that the claimant has not shown any evidence that would rebut the presumption that her continued pursuit of the claims of discrimination arising from disability and unfair dismissal was unreasonable after April 2023.

[39]As noted by the respondent at paragraph 26 of the submission provided on the 19th of July, 2024, the respondent also reminded the claimant on several occasions after April 2023 about the effect of the deposit order and the consequences for costs. It reminded her that this was the effect of.an order of the Tribunal rather than any threat by the respondent.

[40]The claimant claims that she was prevented from calling witnesses who may have assisted her case, such as Bella Dean. She says that she asked the respondent to call Bella Dean as a witness, but they did not do so. The respondent told the claimant in January 2024 that it was not going to call Bella Dean as a witness. It is a matter for the respondent to decide which witnesses they wish to call. There is no evidence that the claimant was prevented from calling any witnesses, or that she approached them herself to ask them to attend, or that she applied to the tribunal for a witness order. Even if she had, given the tests that the tribunal had to apply it is difficult to see what additional relevant evidence Bella Dean could have given that would have assisted the claimant. She could not have assisted the claimant with the discrimination arising from disability claim as the tribunal had found that the claimant was not disabled at the time the deception was carried out.

[41]Bella Dean had given evidence in the disciplinary process, and her evidence had contradicted that of the claimant and had been preferred to that of the claimant by the disciplinary panel. The disciplinary panel were entitled to take that view, as we explained in our judgment dismissing the unfair dismissal claim. So, anything Bella Dean said was unlikely to assist the claimant. The claimant's allegations about Bella Dean and Michael Jarrett at the final hearing seemed to the tribunal to illustrate the claimant's continuing difficulty in accepting responsibility for the consequences of her own actions, that is her protracted and spiralling deception of her employer between 2018 and April 2020.

[42]It was a substantial feature of the claimant’s case at the final hearing that she has been mentally unwell since the deception began in 2018, and as found by Employment Judge Shastri-Hurst, the claimant has been disabled due to anxiety and depression since the 25th of June 2020.

[43]In the documents provided for the final hearing, there is a section commencing at page 720 which includes medical and therapeutic records from June 2020 onwards. It is apparent from those documents and the evidence we heard that the claimant had experienced very significant trauma in the past, when her sister was murdered. The has subsequently (i.e. After 27 April 2020) been diagnosed as experiencing symptoms of PTSD as referred to in the documents in the bundle. Medical documentation also refers to the claimant having experienced depression and anxiety in the period from June 2020.

[44]I have taken this into account and have concluded that whilst it was not unreasonable for the claimant in all the circumstances to have continued to pursue her claims up until the time of the case management hearing in February 2023, and subsequently until she received the deposit order in mid-April 2023, she has failed to persuade me that it was reasonable for her to pursue the allegations/arguments that were subject to the deposit order, after April 2023 when she received that order. I consider that it was unreasonable for her to do so.

[45]She says that she was receiving advice from her union representative Mr Rawlings throughout (although not officially from the trade union) and she was assisted by her grown up son at the tribunal hearing. Her husband also attended to support her. So, she clearly had support from her family. Even if she had difficulty in accepting what the judge said in the deposit order herself, she had sources of advice and assistance around her who could explain it to her. I appreciate that the claimant says that she was not able to afford legal advice, but she has been supplied with details of sources of free legal advice by the Tribunal in addition to the advice that she was receiving from her trade union representative. In my view if she preferred the advice of Mr Rawlings to the reasoning given by Judge Shastri-Hurst it was foolhardy of her (and the family members who were assisting her) to do so, particularly given the very clear explanation provided by the Judge. So, the claimant has not displaced the presumption in Rule 40(7)(a) that she has acted unreasonably by continuing to pursue those allegations or arguments and I must go on to consider, under rule 74(2)(a) whether to award costs against her and, if so, in what amount.

[46]In his written submissions provided at the end of the hearing, Mr Lester set out further reasons why he said the claimant should be treated as having acted unreasonably during the proceedings. So far as points (i) to (iii) are concerned, at paragraph 21, it seems to me that whilst this was unhelpful conduct by the claimant, I do not consider that it was so unreasonable in all the circumstances that it meets the threshold in Rule 74.

[47]It is true that the claimant, at the final hearing, pursued allegations which were not part of her pleaded case or the issues, including serious allegations against Mr Michael Jarrett, which the tribunal found to be without merit. Mr Jarrett had been dismissed as a party to the claim at an earlier stage. As early as the first case management hearing, the claimant had been told about the possibility of amendment If she wished to pursue further allegations against him. She did not pursue this, despite having access to advice from her experienced union representative. Although Mr Jarrett was not a party to the proceedings, however, we did hear some evidence from and about him as there was a potential relevance to the fairness of the dismissal process. As the claimant is unrepresented, and given her disability, I do not consider that it was so unreasonable of her to raise issues about Mr Jarrett’s involvement in that process as to merit consideration of costs on that basis.

[48]Again, whilst I accept that the tribunal found that some of the evidence given by the claimant at the final hearing, including allegations of sex and race discrimination against Mr Jarrett, was not true, taking account of the nature of her disability I do not consider that these matters by themselves merit consideration of costs in the circumstances of this case.

[49]Likewise, the claimant did try to rely upon legally privileged documents during the proceedings and was clearly told by Judge Hawksworth on the 22nd of January 2024 that she could not do so. She has attempted to do so again in the context of this costs application, and according to the respondent has even misrepresented the contents of those documents. Whether or not she has misrepresented them, she should not have referred to them at all, and whatever the Respondent’s legal advice around the time of the disciplinary proceedings, Judge Shastri Hurst later explained very clearly to the claimant why she thought the allegations before her in the disability discrimination and unfair dismissal claims had little reasonable prospect of success, why she was making a deposit order and what the cost consequences could be.

[50]Taking account again of the facts, however, that the claimant is not legally represented, and is disabled by mental impairment, I do not consider that the claimant’s conduct in attempting to refer to legally privileged documents, whether by itself or together with the other matters at points (i) to(vi) of paragraph 21 of Mr Lester’s submissions (or the additional points in the respondent’s response dated 4 October 2024) amount to such unreasonable conduct that consideration of costs is merited in respect of those matters as opposed to her continuation of the allegations and arguments after receipt of the deposit order in April 2023. Having made that finding, for the reasons given above I do not consider that it is necessary in addition to find that those complaints had no reasonable prospects of success. Whilst the claimants additional arguments had little reasonable prospect of success, I do not consider but they never had any reasonable prospect of success, and therefore the respondents arguments under rule 74(2)(b) fail.

[51]Should there be an award of costs? So, the unreasonable conduct is that the claimant continued with her allegations of discrimination arising from disability and of unfair dismissal after receipt of the deposit order (which included reasons) in April 2023. It was unreasonable for her to do so in accordance with Rule 40(7) as the Tribunal rejected those arguments and allegations for substantially the same reasons as set out by Judge Shastri Hurst. The judge had set out very clearly why she thought those arguments and allegations had little reasonable prospect of success and what the cost consequences could be if the claimant pursued them.

[52]Applying Yerrakalva, I must consider the nature, gravity and effect of the claimant continuing to pursue those allegations and arguments thereafter. Whilst, as I have pointed out above, the claimant was permitted to raise a broader challenge to the fairness of dismissal by Judge Hawksworth in January 2024 than had been placed before Judge Shastri Hurst in February 2023, in that it was stated that the tribunal would need to consider whether there was any procedural unfairness as well as whether or not the dismissal was too harsh a sanction, those additional arguments regarding procedural unfairness took up significantly less time and involved substantially less evidence than the arguments which were the subject of Judge Shastri Hurst’s order. The nature of the unreasonable conduct was the pursuit of the arguments subject to the deposit order in disregard of the Judge’s warnings about prospects of success and potential consequences.

[53]In my view, the claimant’s conduct in continuing with the allegations and arguments that were subject to the deposit order after April 2023 was serious; she had been clearly told about the problems with her discrimination arising from disability claim and the nature of the test that the tribunal would apply in relation to unfair dismissal, which also rendered the prospects of success of the arguments put to Judge Shastri Hurst to be low, was explained to her. She chose to disregard that, and the warning about a potential award of costs. 54.The effect of the claimant's unreasonable conduct was that both parties were, in consequence, required to continue to prepare for a four-day final hearing before a full tribunal panel.

[55]This included attendance at the further preliminary hearing in January 2024. The order from 22 January 2024 is found at page 1076 in the trial bundle and was necessary because the final hearing which was previously listed to start on that day had to be postponed. This was because the parties were not prepared for it. Judge Hawksworth found that this was due to delays on both sides. So, the claimant cannot be held solely responsible for the cost of this additional preliminary hearing. 56.It appears that the additional arguments about the procedural fairness of dismissal were first raised at this preliminary hearing on the 22nd of January 2024. If the case had been limited to the additional arguments about unfair dismissal at this stage, the final hearing would have been much shorter and would not have required a full tribunal panel.51. Looking at the schedule of costs supplied by the respondent, I can see that the bulk of the costs were generated after April 2023, to the tune of roughly £15,000, and that counsel's refresher fees for the 17th to 19th of July were not included. The respondent is a public authority, and I am told that the state of the local authority's finances in this case has resulted in government intervention. The local authority issued a section 114 notice under the Local Government Finance Act 1988 in July 2021. This means that the authority’s spending was likely to exceed its resources. The local authority has been put to very significant additional expense which it would not have been had the claimant acted reasonably after having the prospects of the relevant allegations and arguments assessed at the deposit hearing.

52. Whilst, on the evidence I have seen, the claimant’s family finances are tight, I do not accept that they are so strained as the claimant suggests in her statement of the 13th of September 2024. If they were, it seems to me unlikely that the family would spend as much as £600 in one month on clothing, which included designer clothing from Bicester village retail outlet. In any case, impecuniosity does not mean that there should not be any awards of costs, it is simply a factor to be taken into account.

53. Taking account of the overriding objective and reminding myself that costs are not intended to be punitive, it does seem to me that it is fair in all circumstances to make a costs award against the claimant. A clear warning about the prospects of success of the main arguments which were advanced at the final hearing had been given by Judge Shastri Hurst and a deposit order and its consequences were clearly explained to the claimant. Despite this, the claimant appears to have disregarded what Judge Shastri Hurst said and, with advice from Mr Rawlings, continued to pursue the allegations and arguments which were the subject of the deposit order. This has caused significant expense in time and money to the respondent local authority. In my view, they ought to receive some compensation for this.

54. As indicated above, I have taken account of the claimant's financial circumstances but remind myself that the fact that a claimant has limited finances is not determinative of whether a costs order should be made, or its amount. The claimant's financial circumstances have improved somewhat since the time of the deposit order according to the evidence provided, and, despite the uncertainty of her husband's income, the family does have limited funds to spare, based on the evidence I have seen. I appreciate that most of this money appears to be the husband’s earnings rather than the claimant’s, but as I have said, in practise, their finances are pooled. I have decided therefore to exercise my discretion to make a costs award against the claimant. 55. How much should the award be? As indicated above, not all the tribunal's time at final hearing was spent on the allegations and arguments which are the subject of the deposit order, but the bulk of it was. I have considered the respondent’s schedule of costs, and it is apparent that some of the expenditure took place before April 2023. I have therefore concentrated on the amounts generated after April 2023, when the solicitor involved had a charging rate of £90 per hour, rising to £94.23, which seems a reasonable amount in the circumstances. The disbursements to counsel also seemed reasonable in the circumstances.

[56]As noted above, the amount claimed after April 2023 is just under £15,000. I have noted that not all the allegations and arguments considered at the final hearing were those which were subject to the deposit orders, so that some costs would have been generated in any event. Taking account of the state of the claimant’s family finances and the other surrounding circumstances, it seems to me that a fair amount to award against the claimant is the sum of £3,000 in addition to payment of the deposit to the respondent. This should provide some compensation to the respondent for the costs unnecessarily expended whilst avoiding too much of an adverse impact on the claimant and her family. I will leave it to the parties to attempt to agree the rate and period of repayment, but based on the figures I have seen, which I consider are probably not comprehensive so far as income is concerned, if this cannot be paid in a lump sum the claimant should be able to repay this at the rate of at least £100 to £150 per month. Please our sums which would appear to be available to her based on the bank accounts and other financial information I have seen. This would mean that the costs would be repaid within two and a half years, which I consider to be a reasonable period.

[57]The deposit order of £30 will be repaid to the respondent. Approved by: