Dr C MacKenzie v The Principal, Fellows and Scholars of Homerton College in the University of Cambridge: 3323484/2021 and Others
EMPLOYMENT TRIBUNALS
Case No 3323484/2021
Between
Dr C MacKenzieClaimantThe Principal, Fellows and Scholars of Homerton College in the University of CambridgeRespondent
Before
Employment Judge GeorgeIn person for claimantMs B Breslin (instructed by counsel) for respondentDate 12 November 2024
JUDGMENT
PUBLIC The respondent’s application to strike out the claim is refused.
REASONS
[1]In this hearing I granted the claimant’s application for an extension of time to provide documents and a witness statement directed to the preliminary issues. The reasons for that decision are set out in the record of case management orders sent at the same time as this judgement and reasons. They provide the background to the hearing before me on 16 October 2023 and to this judgment.[2]The respondent argued that, rather than permit the extension of time, I should strike out claims or because the claimant’s default was part of a pattern of conduct of these claims which amounted to unreasonable conduct, involved repeated failures to comply with tribunal orders and that that conduct demonstrated a failure to pursue the claims.[3]Under r.37 of the ET Rules of Procedure 2013 the Employment Tribunal may strike out all or part of a claim or response including for the following reasons:a. If the manner in which the proceedings have been conducted by or on behalf of a claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;b. If a party has not complied with an order of the Tribunal or one of the Rules of Procedure 2013;c. If the claim has not been actively pursued.[4]Although the claimant has not prioritised her litigation as I consider she should, the evidence does not support a conclusion that she has failed actively to pursue it.[5]The EAT has made it clear that the power of strike out for non-compliance with a Tribunal order should only be considered in the most serious of cases. The discretion to strike out should only be used where to allow a case to proceed to a final hearing would mean that any judgment obtained could not be described as fair between the parties. However, the question whether a fair trial is possible is not the only material factor. The guiding consideration is the overriding objective: Weir Valves & Controls (UK) Ltd v Armitage [2004] ICR 371, EAT. “The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.” (Weir Valves para.17)[6]In Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 the EAT considered an appeal in relation to an application to strike out the claim on the basis of unreasonable conduct. For reasons I set out in the record of case management order, I consider that the claimant did conduct the proceedings unreasonably by being three months late in producing the evidence for today’s hearing (in breach of a tribunal order) in combination with failing to alert the respondent to any difficulties she was experiencing in compliance at an early stage. The EAT held explained that the requirement for exercising this power was either that the unreasonable conduct was deliberate and persistent disregard of required procedural steps or that it made a fair trial impossible.[7]In para.18 of the judgment it was stated that the question of whether a fair trial is possible is not necessary to be considered in an absolute sense, “where an application to strike out is considered on the first day of trial it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window – not when a fair trial is impossible in an absolute sense.”[8]The respondent relies upon the claimant’s conduct earlier in this litigation. I do not consider that there had been any breach of an order by the claimant up to the point of the preliminary hearing on 23 August 2022. At that hearing, Employment Judge Anstis directed further and better particulars and, without going into the full details of the correspondence chronology, they were ultimately provided much later than the extended deadline agreed between the parties, after the respondent had made an application for an unless order. The claimant argued before me that she provided them exactly on the date that she had notified the tribunal that she was going to do so, but the point is they were not provided within the timescale there had been directed by the by the tribunal or agreed with the respondent. That is what matters in terms of giving the other party sufficient time to respond to any matters that are produced or prepare for a hearing so that it can be effective.[9]The respondent plausibly argued that the late further information led to a late identification of an amendment application. I would characterise the claimant’s actions in February 2023 as a last minute engagement with the task that meant the tribunal and the respondent had to react and adapt when that should not have been necessary.[10]I have taken into account that the guidance Weir Valves and Emuemukoro, including as set out above. Ms Breslin argues that the latter case should lead me to conclude that a fair trial is not possible because the consequence of me granting the claimant’s application for an extension of time to present her witness statement means that a fair trial of the relevant preliminary issue is not possible at this hearing. She argues that this provides a basis for the argument that the claimant's claim should be struck out for her failure to comply with Employment Judge Cotton’s orders or unreasonable conduct as found above. Ms Breslin also points to late compliance with a Judge Anstis’s order to argue persistent failure to comply. My analysis of what happened leads to the conclusion that this is the second occasion on which there have the tribunal and the respondent had to react and adapt as a result of the claimant’s failure to comply with the preparation timetable directed by the tribunal. In the circumstances of the present case, I am not satisfied that this amounts to a persistent or deliberate failure; there have been explanations put forward which partially explain the delay and the claimant did produce the information or evidence directed albeit late which had consequences to the conduct of the litigation.[11]I do not think it possible to say that a fair trial of the preliminary issue is not possible. It is true that Emuemukoro suggests that concept can encompass whether a fair trial at the scheduled hearing date is possible so I do not say it could not encompass the situation where a fair hearing of a preliminary issue at the preliminary hearing is not possible. However, whether or not a fair hearing is possible is not the only factor to take into account. I need to set that in the context of the litigation as a whole. Although there is some probable impact, in particular on the costs incurred and the use of resources not only the respondent but of the employment tribunal, it seems to me that the it would be disproportionate at this stage to strike out the claim is because of the default. Indeed, it would appear more to penalize the claimant for her default which is not the purpose of the discretion under rule 37. I refuse the application for strike out.[1]At this preliminary hearing which took place on 22 January 2024 and 28 August 2024, I had the benefit of,a. an electronic hearing file for 28 August 2024 and pages in that file are referred to as PHB page 1 to 373 as the case may be;b. the electronic hearing file before me on 22 January 2024 which had been updated to include the evidence disclosed by the claimant just before the 16 October 2023 hearing. This is the Updated Hearing Bundle (UHB pages 1 to 672).c. Two witness statements from Ms Andra Hoole (Head of HR) for the respondent;d. a statement from the claimant.[2]Both witnesses adopted their statements in oral evidence and both were cross-examined on 22 January 2024. Both parties had prepared written skeleton arguments in advance of the January hearing which I refer to as CSKA and RSKA respectively. The parties made written submissions following that hearing and I refer to those as CSUB1 and RSUB1 respectively. They then responded to the first round of written submissions and I refer to those as CSUB2 and RSUB2.[3]In respect of the respondent’s costs application I had available their Costs schedule and covering letter in addition to the submissions in the written submissions referred to. I extended time for the claimant’s statement of means and took that evidence into consideration.[4]Case No: 3323484/2021 has a relatively lengthy procedural history. So far as is relevant for the issues I have to decide, the first two claims brought by this claimant against this respondent (Case Nos: 3323484/2021 – the 2021 claim - and 3300119/2022 – the 2022 claim) were consolidated by Employment Judge Anstis on 23 August 2022 (PHB page 190).[5]Employment Judge Cotton, on 7 March 2023, directed that there be a preliminary hearing in public to consider the issues at PHB page 195 including:a. In respect of the claimant’s claims about her Bye-Fellowship (the 2021 claim): i. Was the claimant an employee and/or a worker within the meaning of section 230(1) to (3) (or section 43K)of the Employment Rights Act 1996 (hereafter referred to as the ERA)? ii. Was the claimant in employment with the respondent within the meaning of section 82(2)(a) of the Equality Act 2010 (hereafter the EQA)?b. If not, should the claimant’s claim or part of her claim be struck out of made the subject of a deposit order because it has no or little reasonable prospects of success?[6]Judge Cotton also directed that the employment judge consider whether there was material in the 2022 claim which should be excluded on the basis that it is “without prejudice”. That issue has fallen away for reasons which are explained in the Record of Hearing sent with this reserved judgment. In that Record of Hearing, I also set out the case management orders I made on 28 August 2024 and why.[7]I conducted a hearing in the consolidated 2021 and 2022 claims on 16 October 2023 (PHB pages 205 and 219 for the orders and judgment). On that date, I granted the claimant’s application to rely upon a late served witness statement and supporting exhibits. That hearing was postponed to give the respondent time to reply to the claimant’s evidence. The respondent has made a costs application in relation to this last minute postponement.[8]The preliminary hearing in public was postponed to 22 January 2024 (PHB page 237 for the orders made at that hearing). At the January 2024 hearing, I refused an application by the claimant to rely upon a second witness statement and eight exhibits in relation to the preliminary issue but granted her application to rely upon the statement of means (PHB page 237; written reasons were requested and were provided separately PHB page 240).[9]There were various reasons why it was not possible to deliver judgment on the preliminary issue or on the costs application during the hearing on 22 January 2024. In part this was due to the above contested applications by the claimant but also, time was lost – through no fault of either party – because disruption to the water supply to Reading Employment Tribunal meant that I had to move to Reading County Court and continue the hearing from there. Evidence on the preliminary issue of whether the ByeFellow status gave the claimant standing under the ERA or the EQA had been concluded and, by consent, I adjourned for written submissions with the intention that a reserved written judgment would be sent in due course. The parties made written submissions following that hearing (CSUB1 and RSUB1). They then responded to the first round of written submissions (CSUB2 and RSUB2).[10]In those submissions, and in correspondence, the claimant argued that allegedly inadequate disclosure by the respondent meant that she had not had available the documentary evidence necessary and relevant to determination of the preliminary issue. She made an application for specific disclosure and much of her written submissions were reflections on that evidence rather than addressing the preliminary issue directly. There was by then a third claim which the respondent wished to consolidate with the 2021 and 2022 claims.[11]When this was referred to me, I decided that it was not fair to the parties to seek to deal with the ramifications of this application on paper and directed a resumed hearing to determine matters set out in correspondence of 28 February 2024 (PHB page 246) and the costs application – which had been argued but not yet decided.[12]That resumed hearing was conducted on 28 August 2024 and case management took up the bulk of the available time. The parties had the opportunity to supplement their written submissions on the preliminary issue and on the costs application orally on 28 August 2024. Time did not permit me to deliver an oral judgment on the Bye-Fellowship status preliminary issue or the costs application and I further reserved judgment on those. Preliminary Issues[13]Those were defined by Judge Cotton and have, alternatively, been agreed by the parties (UHB page 86) to be: “In respect of C’s Bye-Fellowship, was C an employee, alternatively a worker within the meaning of s. 230(1)-(3) ERA 1996 and s. 83(2)(a) EA 2010? In particular:a. Did C enter into or work under a contract of employment (s. 230(1) ERA 1996); alternatively, did C enter into or work under any other contract, whether express or implied and (if express) whether oral or in writing, whereby C undertook to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by C (s. 230(3)(b) ERA 1996)?b. Was C employed under a contract of employment or, alternatively, a contract personally to do work (s. 83(2)(a) EA 2010)?” Findings of Fact on the preliminary issues[14]There is no doubt but that the claimant has entered into a number of different concurrent contracts of employment with the respondent. She entered into a contract of employment as a Director of Studies in Land Economy on 1 October 2010, initially for one year. UHB page 219 is the covering letter providing a “Director of Studies Contract” and the contract itself is at UHB page 220. The contract was renewed (UHB page 221 to 240, 281 to 286 until 31 August 2023 and the most recent (UHB page 282) refers to continuous employment since 1 October 2010. All DOS Land Economy appointments are expressly referred to as contracts of employment. She was separately employed as a tutor for part-time MSt students from 1 September 2019 to 31 August 2021 (UHB page 261 is the initial letter of appointment). Again, there are written statements of express terms and conditions of employment covering the relevant period. The claimant was engaged on a contract of employment for DOS LLM/MCL from 1 September 2019 to 28 February 2023 (UHB pages 267 to 271, 322 to 326). The DOS LLM/MCL contract of employment mirrors that of the DOS Land Economy.[15]The claimant was also elected a Bye-Fellow on 26 February 2015 by the Council; UHB page 241 is an extract of the minutes of the Council recording her election and UHB page 245 is an extract from the minutes of the Fellowship Committee held on 11 May 2015 which notes that her ByeFellowship was approved. She was admitted in March 2015 (UHB page 247) on swearing the oath at UHB page 218 by which the Bye-Fellow promises that they will “loyally observe the Statutes and good customs of the College and that I will, in all things, endeavour to promote the peace, honour and well-being of the College”.[16]The statutes of the College (from UHB page 106) provide for ByeFellowship at Statute 14 (UHB Page 116) which makes clear that Fellows and Bye-Fellows are mutually exclusive categories within the statutes. Furthermore, the Council may elect “any person whose election it considers to be in the interests of the College”, shall determine the conditions of tenure of that Bye-Fellowship and may terminate the tenure of that Bye-Fellowship. The Bye-Fellow may be granted privileges as prescribed by Ordinance.[17]Ms Hoole described Bye-Fellowship as a privilege rather than a functional role. When cross-examined, Dr MacKenzie suggested to her that she had confused the Bye-Fellowship with an Honorary Fellowship. Ms Hoole refuted that, saying that there were different perks and privileges involved for honorary fellowships. Those are covered by Statute 13 (UHB page 115). There are several differences between the two positions: an Honorary Fellowship shall be for life unless terminated for grave cause and both election and termination shall be by the affirmative votes of twothirds of the Governing Body – a different body to the Council who elects Bye-Fellows. It is not right to infer from the fact that Ms Hoole describes there being an “honour” associated with being a Bye-Fellow that she has confused the two very distinct types of position.[18]When the claimant was informed of her election she was appointed for three years (UHB page 253). The arrangements for Bye-Fellowship were described to be: “A Bye-Fellowship is offered for a three-year period, unless the Council stipulates a different period, with the proviso that a change in the academic situation of the Bye-Fellow elected will lead to a review of the Fellowship. Bye-Fellowships may be renewed by the Council at the end of this period. A Bye-Fellowship carries an entitlement to twelve meals per free of charge each Term when the College is open. In addition each Bye-Fellow can attend Formal Hall free of charge. Meals in excess of the allowance will be placed on the Bye-Fellow’s Account, which they will be required to settle within one month of the end of each Term. A Bye-Fellowship carries with it access to the College Library, to other common facilities of the College and to the Combination Room. A Bye-Fellowship is non-stipendiary, does not carry a research allowance and does not include voting rights in Fellowship meetings or the Governing Body, and nor does it carry an entitlement to office space. Any work undertaken by you for the College, which is paid, will be through PAYE and, therefore, subject to tax and national Insurance deductions.”[19]The claimant’s Bye-Fellowship was renewed by the Council for a further three years on the recommendation of the Fellowship Committee (UHB page 251) and on renewal the arrangements remained the same (UHB page 253). She submitted a CV in support of further renewal which was supported in 2020 (UHB page 273) for the period to 30 September 2021 (UHB page 276 and 280). On 6 July 2021, the Fellowship Committee resolved to recommend to the Council that the Bye-Fellowship be not renewed and that was agreed upon by the Council on 15 July 2021.[20]The claimant relied heavily on Ordinance 6 (UHB page 146) which covers Bye-Fellows:(a) A Bye-Fellowship may be offered at the discretion of Council to research workers of PhD standing, or others of similar standing, who have been recommended by a Fellow of the College as likely to be of intellectual and practical value to the College. The proposed Bye- Fellow shall be working in the University in a research or other academic capacity, or be regularly used as a supervisor by the College.(b) A Bye-Fellowship shall be offered for a three-year period, unless the Council stipulates a different period, with the proviso that a change in the academic situation of the Bye-Fellow elected shall lead to a review of the Fellowship.(c) Bye-Fellowships shall be non-stipendiary and carry entitlements and privileges as determined by Council.(d) Nominations shall be addressed to the Senior Tutor, and shall be accompanied by a covering letter making a case for the appointment, a curriculum vitae with details of the nominee’s academic achievements, and an account of the benefit that an election to a Bye-Fellowship would bring to the College.[21]The claimant argued that this made clear that the Bye-Fellow was intended to be of intellectual and practical value to the College and not merely functional; that to be of practical value there must be a functional role. However there is nothing in writing that stipulates any particular work which can be expected of the Bye-Fellow. There is an emphasis on the prospective nominees academic achievements and an expectation that the nominees shall be working in the university in another capacity or used as a supervisor by the College. I read that as an intention that the appointment as a Bye-Fellow should be likely to increase the standing and reputation of the individual and of the College rather than a requirement that particular work should be carried out.[22]The privileges and perks available to the Bye-Fellow are:a. Bye-Fellows and Associate Fellows may book the guest rooms for up to 10 nights per academic year when visiting Cambridge or when on College business, free of charge (UHB page 339). The claimant stated that this was worth between £50 and £90 per night depending upon which room was available (C para.18).b. Each Bye-Fellow receives an allowance of up to twelve meals free of charge each Term and can attend Formal Hall free of charge. They are entitled to free tea and coffee in the Combination Room (UHB page 215 and C para.19 &20). The claimant pointed out that the total value was potentially about £2,000.c. The Council has the discretion to approve by exception any special request for an additional allowance or privilege for a Bye-Fellow (UHB page 215). Ms Hoole suggested that an example might be provision of a computer or PC.d. The claimant also referred to discounts from Heffers book shop which are available to Fellows and Bye-Fellows and which are, no doubt, of substantial financial benefit. I do not consider that a benefit provided by a third party is likely, without more, to be relevant to whether the putative employer is under an obligation to provide that benefit or that to whether the putative employee is obliged to provide anything in exchange for it.[23]Bye-Fellows (along with Fellows) are on a circulation list for vacancies (UHB page 340). The claimant argues that this is a privilege. I can see that it is a benefit to the claimant to be on a circulation list which provides her with knowledge of opportunities but I do not see that it informs me about the nature of the relationship which has the consequence that she is on that mailing list.[24]Dr MacKenzie also put to Ms Hoole that opportunities for lecturing on the Homerton Professional Development Programmes (HPDP) and Homerton International Programmes (HIP) were circulated on the mailing list of Fellows and Bye-Fellows. This may illustrate the impact on her of terminating her Bye-Fellowship but I do not see that it can reasonably be regarded as remuneration or an obligation of the College that goes to the status of Bye-Fellowship. In her statement, the claimant’s asserted that she was employed, as a Bye-Fellow, to undertake duties on the HPDP and HIP programmes (C paras. 14 (viii) and (ix))[25]Dr MacKenzie argued that the omission of the privilege of free use of guest rooms was a significant matter which should lead to a finding that Ms Hoole’s evidence was unreliable. I do not think it a sufficiently weighty matter that it undermines Ms Hoole’s reliability in general.[26]The comment in the email from Dr MacKenzie (UHB page 362) where she recounts to the graduate tutor an alleged previous comment that ByeFellowships related to teaching and Fellowships to research and college contribution seems to me to have been taken out of context. In the first place, there is no way of knowing whether Dr MacKenzie accurately recounted what the graduate tutor said. In the second place she is clearly explaining her dissatisfaction with not being nominated for a Fellowship and, in that context, a distinction between the two positions and why one person might not be nominated for the senior position is not evidence that Dr MacKenzie taught or was asked to teach because she was a ByeFellow when she held three other positions which had specific roles associated with them.[27]The claimant mentions supervisions for which she has been paid on a PAYE basis. There is no evidence that she did this work as a Bye-Fellow rather than as a supervisor – a distinct position also described by Ms Hoole as not being governed by a contract of employment (see UHB page 507 for the method of appointment). There is no requirement for supervisors to be Bye-Fellows. The claimant’s oral evidence did not assert that she did this work in the capacity of Bye-Fellow but that she was aware of the opportunity for the work because she was a Bye-Fellow. That is not inconsistent with Ms Hoole’s evidence that the claimant started to undertake supervisions in 2013, nearly two years before she was appointed as a Bye-Fellow. She accepted that these opportunities to offer her services were simply that – opportunities. The College did not obliged its Bye-Fellows to take on a certain amount of supervisory work or lecturing work during the course of an academic year. The claimant consistently described these as opportunities which were available to her during the period of her Bye-Fellowship. I accept that there is no direct link between the role of undergraduate supervisor and Bye-Fellowship.[28]Neither is Ms Hoole’s evidence diminished by not referring to the claimant carrying out dissertation supervision or other academic duties (C para.(ii) and (iii)). There is no evidence of a requirement on Bye-Fellows to carry out this work. The fact that the claimant states she has been a dissertation supervisor since 2010 supports an inference that this is not work she is asked to do as a Bye-Fellow.[29]The claimant does assert in her para.14(iv) that, although the contract for DOS requires one day of admissions interviews work, she has carried out many more interviews including “as a Bye-Fellow” in subjects very different from those for which she is a DOS. She produced a payslip on UHB page 335 showing payment for interviewing. It has no mention of ByeFellowship. On the other hand, UHB page 486 is an email to all DOS dated 3 August 2021 asking them, among other things, whether they would be willing to assist with interviews for particular Arts subjects. This documentary evidence tends to suggest that interviewing was associated with the DOS roles. It certainly reduces the impact of the claimant’s mere assertion that she interviewed in her capacity as Bye-Fellow.[30]The claimant explains that in February 2018 she travelled to India with the respondent’s Development Director, to represent Homerton College at the University’s Global Cabridge Event in Mumbai (C para.14(v)). She produced an email from the respondent’s Alumni Relations Manager to the claimant and the Director of External Relations and Development dated 20 February 20218, shortly before the event on 24 February 2018. The “home team” are listed to include the claimant who is described as “ByeFellow, Homerton College”. The claimant’s evidence was that this was done at the request of the respondent College and that she jointly hosted a reception for Alumni.[31]A business card produced by the claimant in the middle of her crossexamination; the card was admitted although there is no copy in the hearing files. It later emerged that that may have dated from an earlier trip. Email correspondence about the creation of the business card was admitted. One such was from Amy Reeve on 7 October 2016 in which she asked the claimant to confirm that she would like her full job title below included and then set out the claimant’s name followed by “Bye-Fellow and Director of Studies in Land Economy”. The claimant told the Senior Development Officer who wrote the email to include some more information, there was a discussion and the final version agreed upon.[32]However, it is apparent that this was for a different conference then described in C para.14(v). On 5 October 2016 the claimant mailed the Director of External Relations and told him that she had received an invitation to a conference in India two weeks from then, i.e. about the third week in October 2016. It appears from that email chain (forwarded to the tribunal on 28 August 2024) that they met on 6 October, the Director of External Relations offered to arrange business cards and the claimant suggested the wording that described her as “Bye-Fellow and Director of Studies in Land Economy”. Presumably he forwarded that on without amendment to the Senior Development Officer.[33]The highest one can take this evidence is that it shows that the Director of External Relations did not object to the claimant being held out on behalf of the College as a “Bye-Fellow and Director of Studies”. This probably happened in October 2016 and again in about February 2018 when the claimant attended events in India to which she had been invited. It is clear from the email of 5 October 2016 that the claimant had been invited to that event; there is no sense of an obligation on her to attend as part of work done by her. I do not doubt that it was of benefit to the College for her to attend.[34]The claimant’s evidence was that the final card described her as “ByeFellow and Director of Studies in Land Economy” and included her positions as barrister and Master of the Inner Temple. She appears to have been described as a Bye-Fellow when meeting alumni (some of whom she had taught) in both October 2016 and February 2018.[35]Ms Hoole’s evidence was about the 2018 event – the emails about the 2016 trip were disclosed after she gave evidence. It seems that the Director of External Relations asked the claimant to attend as there were some prominent Homerton Alumni based in India who had studied Land Economy. Ms Hoole had found a business card from the later event which did not mention Bye-Fellowship (Hoole 2 para 6(v)). Nevertheless, the email from Homerton’s Alumni Relations Manager at UHB page 469 does describe the claimant as “Bye-Fellow and Director of Studies in Land Economy”. At UHB page 467 she is only referred to as Bye-Fellow. She was accompanied by the Director of External Relations who is also described as a Fellow. It is speculating somewhat but perhaps to describe Dr MacKenzie as a Bye-Fellow when attending with a Fellow gives more authority to her on such a visit because it shows that her academic standing has been recognised by the College.[36]Given that there were two visits, the question about what the business card said does not impinge upon the credibility of either witness. Ms Hoole’s evidence was that she found a business card in a folder entitled “India 2018” which referred to Director of Studies only (UHB page 545 & 546). Dr MacKenzie has produced a business card referring to the 2016 trip. The order in which the evidence was produced means that Ms Hoole was not asked why she had not found the 2016 documents. I do not draw adverse inferences about her credibility as a result of this equivocal information when she did not have an opportunity to deal with the point.[37]The claimant’s evidence about Schools Visits and Outreach is in her para.14 (vi) and (vii). Although she states that this was done from time to time, the examples she gives are from the February 2018 trip. She also states that she travelled to a conference in Surrey to represent the respondent in March 2019. There is the email at UHB page 467 stating that among those attending would be Dr MacKenzie, Bye-Fellow, Homerton College – but I have also been shown the business card draft referring to her as Director of Studies. Her contacts as DOS with alumni are relevant to her presences on the trip. The email at OHB page 466 inviting her to the school trip uses no titles. There is nothing from which to infer that anything would have been different had she only been a DOS and not a Bye-Fellow.[38]As to the Outreach relied on by the claimant, UHB page 547 suggests that this was connected with her position as DOS; she does not mention being a Bye-Fellow when describing the benefits the College would get from the event.[39]Stepping back from the detail analysed above, Dr MacKenzie could not point to a single example of paid work she had carried out as a Bye-Fellow which she had not carried out because of one of her other positions or where the fact she was a Bye-Fellow at the time impacted on whether or not she did the work in any way.[40]Some of her questions tended to focus upon her complaints about the termination of her other positions in ways which did not inform my decision about the nature of Bye-Fellowship. For instance, she sought to crossexamine Ms Hoole about whether her tutor position was in fact redundant when the fact that she had received information about other tutor positions suggested there were vacant positions available. This may be relevant to the claim based upon her tutor position but is not relevant to the preliminary issue.[41]Dr MacKenzie also complained that she had not been treated with the fairness which would apply to fellows and academic staff when her ByeFellowship was terminated without knowing the allegations against her or the reasons why it was not recommended for renewal. Ms Hoole agreed the formal process had not been followed and said that this was because the relevant statute did not apply to the Bye-Fellow. Law applicable to the issues in dispute[42]The way the issues have been defined by agreement (see para.10 above) incorporates the definitions of, worker from s.230(3)(b) ERA and employment from s.83(2)(a) EQA. The question of whether an individual is a so-called “limb b worker” or in employment within the EQA involves essentially the same considerations.[43]To be an employee within s.230(1) ERA, the individual has to have entered into or worked under a contract of employment which means “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.” (s.230(2) ERA). This means that I have to consider whether there was a contract of any kind and, if so, determine its terms.[44]James v Greenwich London Borough Council [2007] ICR 577, EAT was a case which involved an agency worker. The EAT judgment was affirmed by the Court of Appeal ([2008] ICR 545). The case explains the circumstances in which some contract, pursuant to which work is being provided between the worker and the putative employer, can properly be implied according to established principles of contract law. It therefore is applicable to a broader range of situations than simply the tri-partite arrangement between agency, agency worker and end-user. The question is whether it is necessary to imply a contract of services “in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.” (The Aramis [1989] 1 Lloyd’s Rep 213, 224 quoted at James (CA) para.23)[45]It was insufficient basis to imply a contract that the conduct of the parties was more consistent with an intention to contract than with an intention not to contract and would be fatal to the implication of a contract that the parties would or might have acted exactly as they did in the absence of a contract. (James (CA) para.24)[46]The terms of a contract, if any, are usually found in any contractual documentation but, unless the contractual documentation is a full record of the agreement, that may involve examining the surrounding factual matrix to understand how the relationship operated in practice with a view to objectively ascertain the parties’ intention as to any legal obligations. The task to be carried out by the employment judge when determining the nature of the agreement between the parties is to consider what the party’s intentions were from the available evidence whether that be the relevant documents, evidence of oral conversations or conduct: Carmichael v National Power Plc. [2000] I.R.L.R 43 HL.[47]The guidance of the High Court on identifying a contract of employment in Ready Mixed Concrete South East Limited v The Ministry of Pensions and National Insurance [1968] 1 All ER 4633 QBD has stood the test of time. It is often referred to as the multi-factorial test. Three questions are posed, the answers to which inform the Employment Judge deciding whether there was a contract of employment of the factors pointing for and against such a conclusion.a. Did the worker agree to provide his or her own work and skill in return for remuneration?b. Did the worker agree expressly or impliedly to be subject to a sufficient degree of control for the relationship to be one of employment?c. Were the other provisions of the contract consistent with it being a contract of service?[48]One example of a factor the presence of which is consistent with a contract of service or of employment and the absence of which is inconsistent with such a contract is mutuality of obligation. Clarke v Oxfordshire Health Authority [1998] I.R.L.R. 125 CA is authority for the proposition that mutuality of obligation is an irreducible minimum for the relationship to have the hallmarks of employment rather than some other kind of relationship.[49]I have been referred by the respondent to three authorities on mutuality of obligation: Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, CA; Revenue and Customs Commissioners v Atholl House Productions Ltd [2022] ICR 1059, CA and Varnish v British Cycling Federation [2012] ICR 44, EAT.[50]From Nethermere it can be seen that examples of the obligation required of the putative employer would be to provide work and wages and the obligation on the employee is to provide their own work and skill subject to some degree of control of the putative employer. The obligation to provide work for remuneration as a counterpart to the worker’s obligation to provide their own work and skill was described as “correct as far as it goes but … not a full statement of the mutuality of obligation required in all cases for a contract of employment” (Atholl House para.73 – italics supplied). A single engagement can give rise to a contract of employment if work which has in fact been offered is in fact done for payment but an umbrella contract would lack the mutuality of obligation required to be a contract of employment if there was no obligation to offer work (ibid para.74).[51]Although it is argued by the respondent that the mere provision of services and benefits does not equate to remuneration, the EAT in Varnish (see para.57) upheld the first instance tribunal’s conclusion that valuable benefits had not amounted to remuneration in that case saying that the tribunal had been entitled to evaluate each of the services and benefits provided and reach an overall conclusion about whether they amounted to remuneration. The EAT does comment that it would be highly unusual for the obligation to pay to be comprised entirely of discretionary benefits rather than a proportion of remuneration being discretionary.[52]A further issue which arises for consideration is whether there is sufficient control over the putative employee in the sense meant by McKenna J in Ready Mixed Concrete (para.16.b. above). He referred to control as including: “the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done.” ([1968] 2 QB 497 @ 515 F).[53]As to the meaning of “worker” or employment within s.83(2) EQA, I agree with the respondent’s submissions that s.43K ERA is not relevant on the facts of the present case. None of the subsections of s.43K(1) cover any activity carried out by the claimant for reasons explained in RSKA para.23. The claimant has not sought to argue that s.43K ERA had an application to her situation.[54]It is the foundation of the status of “worker” or employment within s.83(2) EQA that there should be a contract of some kind. The other requirements are that there should be an undertaking to do the work or perform the services personally and that the other party to the contract is not, but virtue of it, a client or customer of any profession or business undertaking carried on by the individual.[55]This third requirement distinguishes between those who are independent providers of services and not in a relationship of subordination with the person receiving the services and those who are in what might be described as a hierarchical relationship (see the discussion in Uber BV v Aslam [2021] ICR 657 UKSC paras. 72 to 74. The concept of integration into the business of the person to whom personal services are provided and the inability to market those services to anyone else give rise to dependency in a particular relationship. See also the discussion of control in Lord Leggatt’s judgment at para.87 and the point that intermittent or casual work may indicate a degree of independence or lack of subordination in the relationship incompatible with worker status (Uber para.91).[56]The power to order that one party pay the legal costs of the other is found in rule 76 of the Employment Tribunal Rules of Procedure 2013 (hereafter referred to as the Rules of Procedure). So far as is relevant, rule 76 reads as follows: “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success; or(c) a hearing has been postponed or adjourned on the application of a party made less than seven days before the date on which the relevant hearing begins. (2) A tribunal may also make such an order where the party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of party.”[57]By rule 78 (1), the Tribunal may order the paying party to pay a specified amount not exceeding £20,000 or the whole or a specified part of the costs of the receiving party, to be determined by way of detailed assessment.[58]There are therefore three stages to determining a costs application. First the Tribunal must consider whether the grounds for making a costs order in rule 76(1) exist and secondly, if they do, then the Tribunal must consider whether or not to make one. Finally, the tribunal must decide on the amount of any order.[59]In deciding whether or not to make a costs order, and if so, in what amount, the Tribunal may have regard to the paying party's ability to pay: rule 84 Rules of Procedure. The Tribunal has an open discretion whether or not to take means into account but if it declines to do so, having been asked to consider the paying party’s financial circumstances, it should explain its decision.[60]When deciding whether or not the litigant’s conduct of the proceedings has been unreasonable, the words of the rule are the starting point, remembering that, in the employment tribunal, a costs award is the exception, rather than the rule. As Mummery LJ said in Barnsley MBC v Yerrakalva [2012] I.R.L.R. 78 CA at para.41, “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above [from Mummery LJ’s judgment in McPherson v BNP Paribas [2004] EWCA Civ 586] was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.” Conclusions on the preliminary issue[61]I now set out my conclusion on the issues, applying the law as set out above to the facts which I have found. I do not repeat all of the facts here since that would add unnecessarily to the length of the judgment, but I have them all in mind in reaching those conclusions.[62]It is a precondition of both being an employee and a worker (or employee within the meaning of the EQA) that there should be a contract between the putative employer and employee. In the present case, during her association with the respondent, the claimant has had a contract of employment; she was appointed Director of Studies for Land Economy and then in Law and there are also contractual documents in the hearing file concerning her appointment as a tutor. The paperwork concerning the election to the position of Bye-Fellow is strikingly different to that concerning those roles (see para.14 above). The roles involve offer letters and written terms and conditions. Those terms set out express terms for payment.[63]The Bye-Fellowship is a position authorised by the College Statutes and Ordinances to which candidates are elected. On election they swear an oath promising to observe the statutes and “good customs” of the College and to “in all things, endeavour to promote the peace, honour and wellbeing of the College” (UHB page 218) but do not promise to do any particular activity.[64]The respondent argues that there was no contract between the claimant and respondent. They argue that the letter confirming her appointment did not require the claimant to provide anything in return for that appointment and that the oath is insufficiently certain to give rise to any legally binding obligation.[65]The claimant accepted there was no written contract but argues that the Statutes and Ordinances, and the provisions of Ordinance 6 at UHB page 146 in particular, should be taken to be part of what was agreed, including that the Bye-Fellow should be of intellectual and practical value to the College.[66]I agree that no intention to create legal relations is shown by the arrangements for offering a Bye-Fellowship. There is no express contract between the claimant and the respondent. I say this for the following reasons:a. The lack of formal documentation evidencing or setting out reciprocal obligations contrasts with the documentation sent to the claimant when she was appointed DOS Land Economy, DOS LLM and a Tutor.b. The arrangements are set out in the letters informing Dr MacKenzie of her appointment: the first in time is at UHB page 243. It sets out the perks and privileges of being a Bye-Fellow (free meals, access to the library) but does not impose any obligation on the ByeFellow. The first bullet point suggests that the tenure is linked, not to any particular work done by the Bye-Fellow, but to their “academic situation”. This supports Ms Hoole’s evidence that it is a position of honour and privilege recognising the standing and achievements of the individual. Although those arrangements states that any work undertaken by the Bye-Fellow for the College which is paid will be subject to tax and national insurance deductions there is no expectation that if the Bye-Fellow does not work then they are failing to keep to their side of the bargain.c. The implication that the College accepts that work done as a ByeFellow would fall within the HMRC rules requiring tax to be deducted at source on a PAYE basis is not weighty evidence that there was a contract to allocate work or to carry out work.d. There is also a contrast between the lack of obligation imposed on a Bye-Fellow and the obligations on postholders of other roles imposed by the same statutes and ordinances. The statutes refer to requirements that Fellows (UHB page 146), Tutors (UHB page 150) or DOS (UHB page 151) have particular duties prescribed by the Ordinances or by Council. The phrase in Ordinance 6, which is relied on by the claimant, states that the individual shall have been recommended to be likely to be “of intellectual and practical value to the College”; that is not a statement that they are bound to be of intellectual and practical value to the College but that their potential value should be a precondition of recommendation. Ordinance 6(a) refers to the Bye-Fellow being someone working in the university in a research or other capacity or be used as a supervisor. This points to Bye-Fellowship being an adjunct or honour available to those of academic standing. The ordinance contrasts with the obligation on Fellows to “take part in the activities of the College”.e. The Bye-Fellowship is expressly non-stipendiary by reason of Ordinance 6.f. Although the letter of appointment does state that any work undertaken by the addressee for the College which was paid would be subject to PAYE, this is not, without more, a statement that work will be allocated to the addressee in the capacity of Bye-Fellow or that the Bye-Fellow must agree to carry out work. I have found that the claimant did no work for the College in her capacity of ByeFellow so the question of whether there was a specific contract in that capacity for the duration of a specific task does not arise.g. I accept Ms Hoole’s evidence (Hoole 1st para.8) that not every member of the College academic staff is a Bye-Fellow and not every Bye-Fellow is employed by the College.[67]There being no express contract, the next question is whether a contract can be implied. It is not necessary to imply a contract in respect of the claimant’s Bye-Fellowship in order to give business reality to the appointment. I remind myself of the guidance in James set out in para.44 above. It is insufficient that the conduct of the parties is more consistent with an intention to contract than with an intention not to contract and would be fatal to the implication of a contract that the parties might have acted exactly as they did in the absence of a contract.[68]In the present case, there were three other roles held by the claimant where she undertook to carry out work for the respondent in exchange for remuneration. I do not accept that the claimant did work for the College in her capacity as Bye-Fellow as opposed to another capacity.a. The work she outlined is more likely to be referable to her positions as DOS as to that of Bye-Fellow.b. The claimant gave evidence that she found out about employment opportunities and work because she was on a mailing list of Fellows and Bye-Fellows. Even if that is the case, she had no obligation as a Bye-Fellow to apply for any work; these were opportunities available to her which she could take advantage of.c. The paid work she has done over the years for the College is not, without more, evidence that that work was done in any particular capacity.d. I have accepted the evidence which leads to the inference that admissions interviews were probably done in the capacity of DOS (para.27 above).e. There is evidence that the claimant was introduced to contacts in India as a Bye-Fellow representing the College. However, the business cards relied on by the claimant also refer to the DOS role. The email from the claimant dated 5 October 2016 refers to her being invited to that event – not to her being obliged to go.f. Such schools visits and outreach as have been evidenced before me can be properly viewed as part of the work done as DOS.[69]In those circumstances, it is not necessary to imply a contract of any kind.[70]If I’m wrong about that, I go on to consider the evidence about what the terms and conditions of the relationship might be. A contract to provide personal service[71]The respondent accepts that the Bye-Fellowship was personal to the claimant. She could not nominate another person to enjoy the privileges of the position.[72]The College Statutes and Ordinances do not impose an obligation on ByeFellows to perform any duties or activities. At most there is a vague expectation that the Bye-Fellow will contribute positively to the College in a way which advances its interests. None of the activities undertaken by the claimant for the college were carried out solely in her capacity as ByeFellow. There is one email which describes her as Bye-Fellow without any other title (UHB page 467). This is an email stating who would attend the Global Cabridge Mumbai event in February 2018. There is ample evidence that on this trip and the previous one in 2016 the reason why Dr MacKenzie (rather than any other Bye-Fellow) was useful to the College was that she was DOS in Land Economy.[73]I reject the claimant’s argument (CSUB1 para.32) that because the Senior Development Officer referred to “Bye Fellow and Director of Studies in Land Economy” as her full job title that means that Bye Fellow is a separate employment to Director of Studies. That argument seeks to place a weight on a casual statement in an email which it cannot reasonably bear.[74]By contrast, the College Statues and Ordinances do expressly provide that other positions should take part in the activities of the College and perform the duties of the role (see the paragraphs set out in RSKA 11).[75]Therefore, although the position was personal to the claimant, she was not required to undertake or perform any work for the respondent as a ByeFellow. Mutuality of obligation[76]The claimant places weight upon the Bye-Fellows and Fellows mailing list. However, this was a means by which opportunities were drawn to the attention of academics to whom they might be of potential interest. I accept that in this way it was of benefit to the claimant to be a Bye-Fellow. I accept that she has not received direct communications about opportunities since her Bye-Fellowship was not renewed. The fact of the mailing list does not support a finding that the College were obliged to circulate the vacancies or to appoint the claimant to any of them nor that the claimant was obliged to apply for them. The contemporaneous documentation either (such as in the case of the 2016 India trip) refers to the claimant receiving an invitation or makes clear that (in the case of offering additional time for interviews outside the contractual minimum) it is connected with a contract of employment in another capacity.[77]All of the correspondence referred to in CSUB1 para.36 merely offers information and invites applications. The fact that the claimant received the information because she was a Bye-Fellow does not lead to the inference that there was an obligation to provide it or to apply. I reject the claimant’s argument that there was an expectation that the Bye-Fellow should undertake paid work; that cannot be inferred from a statement that it would be “fantastic” if they were to apply or volunteer.[78]It is true that the Bye-Fellow is entitled under the Ordinances and Statutes to benefits which are of real financial value (in the sense of not illusory) (see paras.22 above). As in the case of Varnish , these do not amount to remuneration. In many ways, the argument in the present case that they do is weaker than that in Varnish because those benefits were available to Dr MacKenzie whether or not she applied for any paid work over and above that she was contractually obliged to do as DOS Land Economy, DOS Law or a Tutor.[79]Even if the Statutes and Ordinances could be regarded as putting into place binding legal relations between the parties, the arrangements for a ByeFellowship and the way the claimant and the respondent conducted themselves during the Bye-Fellowship lacked an obligation for the claimant to perform any work and lacked mutuality of obligation. The claimant was not employed under a contract of employment.[80]The lack of contract between the parties and the lack of an undertaking to perform any work or service personally are also necessary elements of qualifying as a worker under s.230(3) ERA or an employee within s.83(2) EQA (which involve essentially the same considerations). The requirement that a person is in a relationship of subordination and not, by virtue of the contract, a client or customer of any profession or business undertaking carried on by the individual is also a hallmark of this status. The claimant relies upon the way she was held out as “Bye-Fellow” and “Bye-Fellow and Director of Studies” on trips to India. As I’ve already explained, it was her position as DOS which was predominantly the reason for her involvement in the trips. The position of honour and privilege which is the Bye-Fellowship was not the only position she held at the relevant times. She was an employee – as DOS and tutor. Any holding out as integrated into the College is entirely consistent with her other employed positions. There is no need to regard the Bye-Fellowship as subordinate or dependent.[81]The claimant was not a worker under s.230(3) ERA or an employee within s.83(2) EQA. Given those conclusions on the preliminary issues, the employment tribunal does not have jurisdiction to consider Case No: 3323484/2021 which is therefore dismissed. Costs[82]There are three stages involved in the determination of a costs application. I first consider whether there has been behaviour falling within rule 76 ET Rules of Procedure 2013. Next I need to consider whether or not an award of costs should be made and finally, how much should be awarded.[83]The hearing on 16 October 2023 was postponed on the application of the respondent because the claimant had successfully applied for permission to rely upon a statement and a quantity of documentation which had been disclosed after the close of business on the working day immediately before the hearing (see para.7 and 58 to 83 on UHB pages 631 and following). In particular, in para.66 to 82 of my order sent to the parties on 6 December 2023, set out the reasons why I concluded that there had been a last minute engagement by the claimant with task of preparing evidence for the hearing to determine the preliminary issue. That was not the first time on which she had not complied with tribunal orders in time (see para.74 on UHB page 641).[84]Dr MacKenzie had not provided a full and satisfactory explanation for her default (see paras 68 to 70 on UHB page 640). I made clear in para.83 (UHB page 642) that I considered it to be unreasonable conduct for Dr MacKenzie to have been three months late in producing the evidence for the hearing which was to have taken place on 16 October 2023 and for her not to have alerted the respondent to any difficulties at an early stage so that a timely application for postponement might have been made and potentially the cost of the hearing avoided. Her last minute application for a postponement had been refused.[85]The respondent argues that this put the respondent to unnecessary cost including the need for a fourth preliminary hearing (RSKA para.39). They apply for an order that the claimant pay the respondent’s costs. In doing so they rely upon other occasions when they argue there has been a breach of Tribunal orders or unreasonable conduct.[86]It is true that the orders for particularisation of the claimant made before the first preliminary hearing in August had not been complied with and needed resetting at that PH. The order for further information was restated but was only completed with on 24 February 2024.[87]The respondent seeks costs in the sum of £9,179.50 which they state to be the amount of the October 2023 hearing. The claimant argues that the size of the costs is unreasonable as the Respondent could have done more in house through the HR department. There is a Costs schedule at UHB page 672 setting out sums which the respondent state were incurred between 2 October 2023 and 16 October 2023 as additional preparation for attendance at the abortive hearing. They claim £9,179.50 for responding to late applications for the postponement of the PH and specific disclosure, due to late submission of the claimant’s witness statement and exhibits and attendance at the preliminary hearing itself.[88]The claimant resists the application arguing that the respondent’s size and resources mean that it has ready access to solicitors and counsel’s advice. She argues that any award of costs while cause financial hardship and would be an unreason burden for her; she argues that it would make it less likely that she would be able to afford representation at the final hearing and, in effect, that it would have a chilling effect on her ability to be represented. She is trying to save to be represented by counsel at the substantive hearing.[89]She updated her information about her means in oral evidence; she is no longer member of committee of radioactive waste management which she stated caused a drop of about £5,000 p.a. In CSUB2 she describes her income as low and unpredictable because she carries out short-term or casual academic work (CSUB2 para.17 and para.3 of her statement of means). However, it is apparent that she works hard to put together a portfolio of different roles. She sets out some figures for the amount payable for each paid role but give patchy information about how much she actually earns from most of them. This is not necessarily because she is concealing anything. She states that she has particular sources of income but has not helped the tribunal to understand what that income amounts to. For example, she states that her position as Chair of the UK Plant Variety and Seeds Tribunal pays one 220th of the rate of a judge of the first tier tribunal but that she is reestablishing that tribunal. She does not know how many days’ work which would be involved but could state, expressly, how much the daily rate would be or how many days’ she is required to be available to sit by her terms & conditions.[90]I granted her an extension of time for her statement of means. As well as the above information about income generating opportunities, she sets out financial obligations and details about her properties: a house in Bangor, County Down and a cottage in County Longford – both of which she describes as requiring renovations. Her evidence of means (CSUB2) explains that she owns, jointly with her sister, a “small and basic” cottage in County Longford see para.16 of CSUB2. She describes work which is said to be needed on the cottage (CUB2 para.16).[91]CSUB1 para.22 provides additional details of the challenges she states the basic level of accommodation poses to preparation since the properties she lives in apparently lack access to electricity and internet from time to time. She has had a particular difficulty due to storms causing damage to the water supply to the cottage in County Longford. The relevance to the costs application is that there do appear to be short term demands upon her capital if her accommodation is to be kept at a reasonable level. She states that at least some of these are expenses that she shares with her sister. However, if in litigation a party unreasonably causes the other side to incur unnecessary expense they must accept the risk that they will have to change their financial priorities.[92]I have already found that the claimant was guilty of unreasonable conduct of the litigation in her late application for permission to rely upon a detailed witness statement and supporting evidence, after her application for a postponement was unsuccessful because it was coupled with a failure to inform the respondent of the challenges and of her prospective application.[93]I take into account such information as is provided about the claimant’s means. She seeks to present an overview of her finances; she paints a picture of a portfolio career of complementary activities, none of which are highly remunerated viewed as piece rate. However she does not transparently answer the simply question, what is her income in a twelvemonth period? I infer that there is an element of under reporting and that the claimant sets out the information in the way most likely to give the impression of income which is only sufficient for day to day essentials. In broad terms I accept that she is in modest circumstances but I see no reason why she was unable to disclose in a more straightforward way the amount of her income and the amount of any savings. It is not possible with reasonable enquiry to understand specifically what she earns each year and that is something she could have explained. Furthermore, she appears to work hard and has positions which are likely to remain available as sources of work where they are public positions or because the demand repeats year on year. The claimant expects to be able to save for legal advice and representation. Some of that should be available to mitigate the impact on the respondent of her unreasonable conduct. I think that a 4 figure award is not outside what she can afford within a reasonable time.[94]The October 2023 hearing was not the only hearing which did not achieve its results or all of its results because of the actions of the claimant. The respondent mentioned a failure to provide particulars in good time. There have been a succession of applications (such as for specific disclosure) which took time from the hearing out of proportion to the importance of the application. That is relevant to an exercise of my discretion because, although costs are very much the exception in the employment tribunal, where a litigant has behaved unreasonably in relation to tribunal orders and caused expense to the other party and inconvenience to them and the tribunal, conduct on other occasions which does not use time proportionately suggests that they need to be shown that the resource of time itself is of value.[95]I take seriously the claimant’s argument that the costs order should not impede her access to justice by making it harder for her to save for her representation. However, over the course of the litigation, she should be able to save both to take legal advice and to pay something towards costs. The prejudice to the respondent caused by the late postponement is mitigated by a costs order and they have only applied for a proportion of the costs associated with the October 2023 hearing. .[96]On balance I consider that it is right to take the unusual step of ordering the claimant to pay some costs in this case. I consider the costs schedule to try to identify what has been the consequence of the unreasonable conduct. I reject the claimant’s argument that the respondent should do more in house. In particular, when they have properly instructed solicitors, if there is a last minute application with lengthy exhibits, those solicitors are bound to need last minute preparation time. However it is only the time at which is that preparation time is done which changes; had the statement been sent to the respondent in good time they would have carried out the preparation in any event. The lack of warning meant there was no way of avoiding the attendance at the preliminary hearing; conversely, the amount of information provided at the last minute meant the hearing was bound to be postponed. The attendance at the hearing has resulted from the claimant’s last minute witness statement and exhibits. In ordinary circumstances, I might not think it reasonable for the respondent to instruct counsel and have a fee earner at partner level attend for a short period. However, in this case the uncertainty of fast developing events justified having attendance on Counsel of both of the people with conduct of the case. I do not think it reasonable for the claimant to have to pay 7 hours’ attendance of the managing associate’s costs when the hearing was conducted by CVP and was postponed after the claimant’s application for an extension of time. I award 3.5 hours’ of the managing associate as a more reasonable figure.[97]I will make a costs order but, because of the claimant’s straightened circumstances and her argument to be wary of impeding her access to justice. This will cover the following:a. Attendance 16.10.2023 MDR Fee Earner – partner (0.40 hours @ £450 per hours) £180;b. Attendance 16.10.2023 MDR Fee earning – Managing Associate (3.5 hours @ £360 per hours) £1,260;c. Counsel’s fees for 16 October 2023 - £1,500.[98]This will total £2,940.00. I make the costs order in that amount.[99]I would like to take the opportunity to apologise to the parties for the delay in sending this reserved judgment and any inconvenience caused which is due in part to pressure of judicial work and in part to a period of leave.