Case No 4100458/2017Venue InvernessHearing 19 and 20 July 2017
Between
Mr R TaylorClaimantG & A Barnie Group LimitedRespondent
Before
Employment Judge Iain F. AtackMr E Stafford (instructed by Solicitor) for respondentDate 1 August 2017
JUDGMENT
[1]The judgement of the employment tribunal is that the claimant was not unfairly constructively dismissed in terms of section 98 of the Employment Rights Act 1996 and that his claim is dismissed.
REASONS
[2]The claimant’s claim was one of constructive unfair dismissal. He alleged that the respondent had committed a fundamental breach of the implied term of trust and confidence. The respondent denied that the claimant had been constructively unfairly dismissed claiming that he had simply resigned.[3]The parties lodged a joint bundle of documents consisting of 36 documents extending to 154 pages to which was added, on the first day of the hearing, a psychiatric report which formed document number 37, page 155-165 of the bundle. Reference to the bundle will be by reference to the page number.[4]The claimant gave evidence on his own behalf and led evidence from Samantha Johnston who had been his girlfriend at the relevant time. For the respondent the tribunal heard evidence from Alexander Barnie, their managing director; from Michelle M Barnie one of their employees, and from Mrs. Sheila B Barnie one of their directors. The tribunal considered that all the witnesses provided their evidence in an honest fashion.[5]From the evidence which it heard and the productions to which it was referred, the tribunal found the following material facts to be admitted or proved. Material Facts[6]The respondent is a mechanical and electrical engineering company which operates throughout Scotland. They employ approximately 350 people.[7]The claimant was employed by the respondent from 11th February 2013 until 9th November 2016 when his letter of resignation was accepted by the respondent. The claimant worked for the respondent on a construction site in Shetland from May 2016.[8]Whilst working in Shetland the claimant resided in accommodation provided for him by the respondent.[9]On 7th July 2016 the claimant became involved in an issue involving an apprentice electrician. The apprentice informed the claimant that he had been threatened with a verbal warning giving the reason that he had been caught making brackets whilst sitting down in a container. The claimant felt that the threat of a written warning was unfair and spoke to his supervisor about the matter.[10]The supervisor, Stephen Knowles, informed the claimant that it was not his business and told him to leave the supervisor’s office. This information was conveyed in robust language.[11]I accepted Mr Barnie’s evidence that the apprentice had been disciplined for possessing a mobile phone on site, which is strictly prohibited by the respondent’s rules, rather than for the reason given by the apprentice to the claimant. The claimant had not been present when the apprentice had been given the threat of a warning and in the discussion with Mr Knowles the actual issue which had given rise to the threat of warning had not been discussed. Mr Barnie had been informed by the supervisor of the real reason for the apprentice being given a warning and as a result at a tool box talk on 18th July 2016 the issue of mobile phones not being permitted on site was specifically discussed, page 82. I preferred Mr Barnie’s evidence on this point as being likely on balance to be more accurate.[12]On the same day the claimant had a further altercation with his supervisor regarding another apprentice. The claimant had asked that other apprentice, from a different work squad, to assist him in a task without obtaining permission from the supervisor. When the supervisor learnt of this he removed the apprentice from the claimant.[13]The claimant was aware that before requesting that apprentice to assist him he should have sought permission from the supervisor. It is only the site supervisor and his deputy who had authority to remove labour from one squad to another.[14]The claimant’s reason for not speaking to his supervisor and obtaining permission was that he was not speaking to the supervisor as a result of the earlier incident involving his own apprentice.[15]The site manager, Anton Lennon and his deputy Stephen Knowles, who were the claimant’s supervisors, were concerned that the claimant’s actions were undermining their positions and requested that Mr Barnie attend on-site in Shetland to resolve the matter.[16]Mr Barnie travelled to Shetland and met the claimant on 9th July 2016. He discussed with the claimant the alleged undermining of management position and the procedures which had to be followed. He explained it was not an option open to the claimant to move labour and only site managers could do that.[17]The claimant’s request to change site was rejected by Mr Barnie as there was a job to be done in Shetland.[18]Mr Barnie convened a meeting of the claimant, Mr Lennon and Mr Knowles on Sunday 10th July. Following that meeting Mr Barnie understood matters to be resolved.[19]Following that meeting there were no further problems involving the claimant and the site managers.[20]Accommodation was provided for the claimant and other employees by the respondent in Shetland.[21]On the night of 24/25th September 2016 the claimant was assaulted in his accommodation by another employee. As a result of the assault the claimant was taken to hospital for treatment for his injuries.[22]Whilst in hospital claimant was visited by Anton Lennon and by another employee Craig Carmichael. They brought some personal effects from his accommodation to the claimant.[23]The claimant was discharged from hospital on Monday 27th September. The respondent arranged a flight from Shetland to Aberdeen for him and for Michelle Barnie to drive him from Aberdeen to his home in Inverness.[24]After the morning flight, there is only one other flight from Shetland to Inverness. The respondent did not know on which flight the claimant’s attacker would be travelling and the claimant had indicated he did not want to be on the same flight. For this reason it was decided to fly him to Aberdeen and then return to Inverness by car.[25]The claimant produced fit notes covering the periods of 25th September to 28th October 2016, from 31st October to 11th November and from 18th November until 6thJanuary 2017, pages 89,91 and 98. He was unable to work during those periods as a result of the injuries sustained in the assault. It was indicated initially that he might require a phased return to work depending on progress.[26]On 30th September Mr Barnie contacted the claimant to ascertain how he was and if he was fit for work. At that stage the claimant had not submitted the first fit note which was dated 3rd October 2016.[27]Mr Barnie required to know if the claimant was to returning to work so that flights and accommodation could be arranged.[28]In terms of the claimant’s contract of employment the duty was incumbent upon him to notify the respondent of absence and to provide an appropriate medical certificate, page 54.[29]The respondent does not operate a sick pay scheme other than paying statutory sick pay. The respondent paid the claimant during his period of absence for the basic 37½ hours of work. This was a discretionary payment.[30]On 27th October the respondent wrote to the claimant seeking his consent to obtaining a written report from his own GP about his health. It was explained in the letter that the purpose was to assess his fitness for and likely return to work and the range of reasonable adjustments they might need to put in place for a phased return to work.[31]The claimant did not understand why the letter had been sent to him as there had been no previous enquiry from the respondent. He felt the letter was aggressive and expressed no concern for his wellbeing.[32]He was upset by the letter and felt he had no longer any trust and confidence in the respondent. He felt he had no option but to resign his employment.[33]On 31st October the claimant sent an email to Mr Barnie giving notice of termination of employment, page 97. He also asked how much notice was required.[34]Mr Barnie responded on 8th November by email advising no notice period was required and the last day of work would be regarded as being 9th November 2016.[35]The claimant had a net weekly basic pay with the respondent of £625. The respondent made a payment of £7.11 in respect of pension contributions.[36]The claimant did not seek employment until about March or April 2017. Prior to that he worked with his father but did not receive any remuneration. He attended a training course in Denmark with a company called Vrogum Svarre and obtained a certificate for completing that course, page 153.[37]The claimant has now obtained new employment with A J Morrison Ltd at a basic weekly gross rate of £580 for a 40 hour week. This produces a net pay of £529.24. Submissions Claimant[38]Mr Taylor accepted that he had to show that he had been treated in such a way that he had no alternative but to resign.[39]He referred to the incidents he had raised regarding the apprentices and the refusal by Mr Barnie to allow him to leave Shetland after those incidents in July. He was concerned that there had been no contact from the respondent’s health and safety Department or HR Department to discuss his injuries following the assault, until he received the letter of 27th October.[40]It was his position that there was an obligation on the employer to offer help and assistance and that had not happened. There was a breach of the duty of care and attention.[41]In his ET 1 Mr Taylor stated that after receiving the letter of 27th October he decided he did not want to add to the stress he was already under by returning to work for a company in which he had lost trust and confidence and decided to resign.[42]It was his position that the way in which the respondent had treated him left him with no alternative but to resign. Respondent[43]For the respondent Mr Stafford set out the legal tests contained in Western Excavating (ECC) v Sharp [1978] IRLR 27 and submitted that it was for the claimant to show there had been a fundamental breach of contract namely that the employer had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them.[44]He also referred to the cases of Lewis v Motorworld [1985] IRLR 465; L B Waltham Forest v Omilaju [2005] IRLR 35; GAB Robins (UK) v Triggs [2007] IRLR 857 and Abbycars (West Horndon) Ltd v Ford UKEAT/0472/07/DA.[45]It was his position that the respondent had not breached the duty of trust and confidence at all in respect of any of the complaints made by the claimant. He did not accept that the claimant being counselled as to his dealings with site management could be said to amount to the respondent acting in such a way as, without reasonable and proper cause, conducting itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the claimant and the respondent. The activities of the site management and Mr Barnie in addressing the issues could not amount to a repudiation of the contract. In any event the claimant had not resigned until some three months after those events had taken place. That submitted Mr Stafford was too late.[46]Mr Stafford also submitted that the assault on the claimant was committed outside working hours and did not trigger the usual accident/incident process under which a health and safety adviser would have been asked to investigate. There was no repudiatory breach of contract in the way in which the respondent reacted after the assault.[47]It was necessary to consider whether the “last straw” doctrine applied. In Mr Stafford’s opinion following the tests set out in Omilaju, it did not. It appeared that the key reason for the claimant resigning was the letter of 27th October. The letter of 27th October was entirely innocuous and not a breach of contract. An innocuous act cannot be a final straw even if the employee genuinely but mistakenly interprets the employer’s act as destructive of the necessary trust.[48]Mr Stafford submitted there was no constructive dismissal and the claim should be dismissed.[49]In this case the claimant claims he has been constructively dismissed as described in section 95 (1) (c) of the Employment Rights Act 1996. This states that there is a dismissal where the employee terminates the contract in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.[50]In the case of Western Excavating (ECC) v Sharp (above) it was made clear that the employer’s conduct must be a repudiatory breach of contract: “A significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the terms of the contract”. It is clear that it is not sufficient that the employer’s conduct is merely unreasonable: it must amount to a material breach of contract.[51]The employee must then satisfy the tribunal that it was this breach that led to the decision to resign and not other factors.[52]Finally, if there is a delay between the conduct and the resignation, the employee may be deemed to have affirmed the contract and lost the right to claim constructive dismissal.[53]The term of the contract which the claimant relies on in this case is that commonly called “trust and confidence”. This was defined in Malik v Bank of Credit and Commerce International SA ( In Liquidation) [1997] IRLR 462 where Lord Steyn said that an employer shall not “without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.[54]In this case the claimant refers to various incidents which he alleges amount to a breakdown in trust and confidence. These can be summarised as follows: –• The claimant’s purported treatment after the matter involving an apprentice being disciplined;• The claimant’s purported treatment after his involvement where site management removed an apprentice without permission from the claimant;• The claimant being assaulted;• The respondent’s alleged failure to engage with the claimant following the assault;• Flying the claimant to Aberdeen instead of Inverness and• The respondent writing to the claimant to obtain a medical report.[55]It was clear from the evidence that the claimant was not aware of the all circumstances leading to disciplinary action being taken or threatened against his apprentice. In any event whatever the reason it was a matter for management to the deal with any disciplinary action which was required and not the claimant. The fact that he may have been told somewhat robustly that the matter was none of his business cannot of itself amount to a breach of contract. The site managers were acting in accordance with the respondent’s procedures in dealing with the issue of an employee having a mobile phone on site, which was against their rules.[56]It was not for the claimant to take another apprentice from a different squad to assist him. It was only the site managers who could move labour around the site. The claimant did not seek permission for his actions in removing the apprentice from the squad to which he had been assigned. The claimant was aware he should have sought permission but chose not to do was because he was not at that stage speaking to his supervisor because of the earlier incident with the claimant’s own apprentice.[57]The claimant may well be justified in thinking that it was unreasonable for the supervisor to take away the apprentice but that is not to the point. It was perfectly within the supervisor’s authority to act in that way and to remove the apprentice. It is for management to decide who works where to ensure that the work is completed and carried out in an orderly manner.[58]I did not consider that either of these matters either singly or cumulatively could be regarded as a fundamental breach of contract by the respondent. However, even if I am wrong, I consider that the claimant has waited too long in resigning in response to these alleged breaches of contract. He carried on working on the site after the intervention by Mr Barnie and gave no further sign to the respondent that he was dissatisfied with the treatment received or the outcome of his discussions with Mr Barnie. In my opinion, if there was a material breach of contract in respect of these two matters, the claimant has by his subsequent actions affirmed the contract.[59]The assault upon the claimant had a devastating effect upon him as was clear from the psychiatric report produced in the bundle. His complaint in this case however was the respondent’s failure to engage with him after the assault. He was upset that Mr Barnie had not contacted him until 30th September. His impression was that Mr Barnie was not particularly concerned about his health but more concerned to know whether he was returning to work on the following Monday. Mr Barnie’s position was that he needed to know if the claimant was returning to work on the Monday because he had heard nothing from the claimant and travel arrangements had be made depending upon the claimant’s ability to return to work or not.[60]At this stage the respondent had not received the first fit note and had no official information about the claimant’s condition and ability to work. In terms of the claimant’s contract of employment the duty was upon him to inform the respondent if he was unable to work.[61]It may well be that another employer might have handled a situation such as this in a very different way and might have contacted the claimant directly at an early stage to enquire about his injuries and offer any help that might be required. However I do not consider there is any legal obligation upon them to do so and have not been referred to any authority to that effect. The claimant provided the respondent with fit notes which indicated he was not fit to work. As a result the respondent was aware of the position. I do not consider that the failure to contact the claimant regarding as well is could be regarded as a breach of the term of trust and confidence as set out by Lord Steyn in Malik.[62]The act of flying the claimant to Aberdeen rather than Inverness was explained by the fact that neither the respondent nor the claimant wished him to be on the same flight as the person who had assaulted him. The respondent was not responsible for arranging that employee’s return to the mainland and that did not know what flight he would be on. There is only one flight each day to Inverness after the morning flight and in any event by the time the claimant was released from hospital it was, in the respondent’s opinion too late to be able to catch the afternoon flight. For these reasons they chose to fly him to Aberdeen and have Michelle Barnie to drive him to Inverness. Those actions could not be seen as being a breach contract or as a breach of the implied duty of trust and confidence.[63]The act that appeared to be the trigger for the claimant deciding to resign was the respondent sending a letter to him on 27th October 2016 requesting access to his GP to obtain a medical report. The purpose of the letter is clearly set out in it as being to assess his “fitness for and likely return to work, the impact of your absence from or resumption of duties on our workflow and resources, the effect of your condition on your day-to-day activities, the range of reasonable adjustments we may need to make any short-term measures we can put in place for a phased return to work”.[64]The claimant took exception to this letter as there had been no prior communication from the respondent and felt it was aggressive and showed no genuine concern for his well being. He felt he had no option but to resign and sent the email of 31st October to Mr Barnie. His position was that he felt the respondent had failed in their duty of care to him and put him in a position where he had no alternative but to cease his employment with them.[65]Viewed objectively the letter is a relatively standard style of letter sent by an employer to an employee absent due to ill-health, seeking information about future health and ability to return. It might well have been preferable if the respondent had sent along with that formal letter an informal one setting out the need for formality and what they were trying to do. That might have allayed the claimant’s concerns. However there is no obligation on them to do so and the act of sending the letter cannot be construed as a material breach of contract.[66]The letter was regarded by the claimant as the final straw. Mr Stafford pointed out that the final straw act need not be of the same quality as the previous acts relied upon as cumulatively amounting to a breach of the implied term of trust and confidence but it must when taken in conjunction with the earlier acts, contribute something to that breach and be more than utterly trivial. I agreed with that submission and that sending of the letter was not a breach of contract.[67]Mr Stafford also submitted that where an employee, following a series of acts which he alleges amounts to breach of contract, but does not accept the breach and continues in the employment, thus affirming the contract, he cannot subsequently rely on the earlier acts if the final straw is entirely innocuous. In this case I accepted that the sending of the letter, that is to say the final straw, was an entirely innocuous act on the part of the respondent. It therefore cannot be in the circumstances of this case the final straw.[68]In my opinion the claimant has not in this case been constructively dismissed in terms of the Employment Rights Act 1996 and his claim of unfair constructive dismissal is dismissed.
Introduction
[1]This was an application for expenses made by the respondent against the claimant. Following a hearing which lasted over 2 days on the 19th and 20th July 2017 the employment tribunal issued a judgement dismissing the claimant’s claim of constructive unfair dismissal. That judgement was 1 August 2017 and entered in the register and copied to parties on 3 August 2017.[2]The application for expenses was made on behalf of the respondent on 16 August 2017. That application was made in accordance with rule 77 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the rules”). A copy of the application was sent to the claimant and he responded to it. It was agreed between the parties that the application be dealt with on paper and without the need of a full hearing.[3]The respondent submitted full details of the expenses incurred by them by email of 18th September 2017 which had attached to it five fee notes. They were dated 31 March, 28 April, 31 May, 30 June and 31 July 2017 for sums, including VAT, of £958.80,£704.40,£714,£2040 and £6242 respectively. The total sum being sought by the respondent amounted to £10,659.20 including VAT.[4]The claimant set out his position with regard to his earnings assets and liabilities in an email dated 25 September 2017.[5]From the documents submitted by the parties the employment tribunal found the following material facts. Facts[6]The respondent wrote to the claimant on 9 June 2017 putting him on notice that should he continue with his claim for constructive unfair dismissal the respondent would make an application to the tribunal for an expenses order to be made against him. That letter set out rule 76 in detail and explained why the respondent considered the claimant had not met the test to show he had been constructively dismissed.[7]The claimant considered that letter to be a threat to attempt to persuade him to abandon his claim.[8]The respondent has incurred expenses to their solicitors in the sum of £10,659.20 including VAT.[9]The claimant gained employment with A J Morrison Ltd. with effect from 12th June 2017. His rate of pay is £14.50 per hour.[10]The claimant’s balance at the credit of his current account with the Bank of Scotland as at 20th September 2017 was £110.02.[11]He owns a motorcar which he has valued as being worth £500.[12]He is currently building his own house. That property was appraised on 6th February 2017 by J and E Shepherd, chartered surveyors, who considered in its condition at that time it could be fairly valued in the sum of £150,000. The surveyors considered the final value of the property for loan purposes upon completion would be £200,000 and that the reinstatement cost assessment of the property for insurance purposes was £400,000.[13]The claimant has an outstanding loan from Ecology Building Society which, in a letter from the building society dated 7th of February 2017, was stated to have a balance of £131,915.25.[14]The claimant holds a credit card from Barclaycard which as at 7th of September 2017 had a debit balance of £3533.09.[15]In addition the claimant has unspecified debts due to family members amounting to £6500. Submissions[16]Mr Stafford submitted he was applying for an order for costs on the grounds that the claimant had no reasonable prospect of success in relation to his claim of unfair constructive dismissal. He set out in 14 bullet points what he considered were the relevant factual and procedural backgrounds to the application and stated that none of the allegations by the claimant of purported breaches of contract by the respondent were upheld by the employment tribunal.[17]He had written on the behalf of the respondent to the claimant on 9th June 2017 putting him on notice that if he persisted with his claim the respondent would make an application to the tribunal for an expenses order in terms of rule 76. That letter had set out the legal requirements which would have to be satisfied if a claim for constructive unfair dismissal was to be successful.[18]Mr Stafford also referred to the judgement and reasons as to why the claim had been dismissed.[19]The respondent wished to recover the full amount of their legal expenses as set out in the fee notes attached to the email which Mr Stafford had sent to the employment tribunal on 18th September 2017.[20]Mr Taylor did not accept that his case had no reasonable prospect of success. He had prepared his application without legal assistance and did not think the employment tribunal would be sending the right message to let claimants making claims without legal representation to go all the way to a final hearing and then if they fail to make them pay, as he put it, “thousands of pounds” to the other side. He considered that to be a denial of access to justice.[21]It was his position that he genuinely believed he had been badly treated by the respondent. He considered the letter of 9th June was an attempt to bully and threaten him into dropping his claim.[22]He could not afford to pay such a large amount of money as was being claimed and the fact that this matter was hanging over him was making him very stressed and worried. He referred to the psychiatric report which he had produced at the merits hearing which had stated he had been diagnosed with post traumatic stress disorder. It was his position that this application from the respondent had made that condition flare up and he had had to consult his doctor about his health. He was fearful he would suffer a relapse if he was put in a situation where he had to pay a large expenses bill. He was concerned that he might not be able to retain his job if the stress continued.
The Law
[23]Rule 76 of the rules provides, insofar as material, as follows: – (1) A Tribunal may make a costs order or a preparation time order, and it 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 has no reasonable prospect of success;….[24]In this case the basis of the application was that the claim had no reasonable prospects of success, although the letter of 9 June whilst stating that was the respondent’s position did also say that it was likely to be considered by the tribunal that the claimant had acted vexatiously and unreasonably in bringing this claim for the reasons set out in the letter.[25]I was not addressed on the question of vexatious conduct or indeed unreasonable conduct other than the allegation that the claimant had proceeded with his claim when in the opinion of the respondent it had no reasonable prospects of success.[26]An employment tribunal has a discretion to make a costs order where it considers that the claim has no reasonable prospects of success. The tribunal has a duty to consider making an order where that ground is made out but a discretion whether to actually award costs. The first question to consider therefore is whether the claim had any reasonable prospects of success.[27]The key question in considering this matter is not whether the claimant thought that he was in the right but whether he had reasonable grounds for doing so. The judgement makes it clear that there was no material breach of contract by the respondent even although the claimant may have felt he was being treated badly.[28]He was warned by the respondent that they considered his case had no reasonable prospect of success and the reasons why they had formed that view were set out clearly in the letter. The claimant considered that the letter was bullying and threatening but viewed objectively that is not a sustainable argument. The letter set out clearly what requirements had to be met before a claim for constructive dismissal could be successful and then set out the reasons which the claimant had given for resigning from his employment. It then set out why applying those facts to the law, the claim, in the opinion of the respondent, was unlikely to be successful.[29]That letter in my opinion was a fair warning to the claimant as to what respondent felt about the strength of this case and what consequence might follow if he persisted in pursuing his claim.[30]It is important to bear in mind that the claimant was a party litigant conducting his own case. In the case of AQ Ltd. v Holden [2012] IRLR 648 the EAT held that when applying the preceding rules relating to expenses which are very similar terms to the current rule 76. A tribunal must take into account whether a litigant is professionally represented. It stated – “A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life.”[31]I did not judge the claimant by the standards of a professional representative but did consider that the warning given to him in the form of the letter set out clearly the legal position which would easily be understood by a lay person. After the claimant had received that letter he should have been aware that if he continued with his claim and was unsuccessful he was likely to be faced with an application for expenses.[32]I was therefore satisfied that at least by the time he received that letter the claimant should have been aware that his case had no reasonable prospects of success. The legal and factual position had been explained to him. Having reached that conclusion I am required to consider whether to make a costs order, in terms of rule 76 and, if so, in what amount.[33]The claimant, as noted, was a party litigant and did not have the benefit of legal representation in connection with his claim. He stated that he had submitted his form with no legal assistance and I accepted that submission.[34]A psychiatric report had been prepared and formed pages 155 – 165 of the bundle at the merits hearing. The conclusion of the consultant psychiatrist was that Mr Taylor’s psychological difficulties equated to a post traumatic stress disorder. He also noted that Mr Taylor had a past history of difficulties with his mental wellbeing and considered that was likely to have promoted a degree of susceptibility to further difficulties with his mental well-being in response to adverse stressful events.[35]The claimant’s position was that the stress of dealing with the claim for expenses was making him stressed and worried and he had had to consult his doctor about his health. I took into account the claimant’s psychological difficulties as described by the consultant psychiatrist and his own in submissions in considering whether or not to make a costs order.[36]I considered that as the claimant had been made aware of the respondent’s position and had not reconsidered his case but persisted with it, it was appropriate that a costs order should be made.[37]Having decided in principle to make such an order, the next question is as to the amount. The respondent is seeking a full reimbursement of their legal expenses, which are set out in the fee notes that were produced.[38]Against that I took into account the claimant’s mental state as referred to in the psychiatric report and his own perception of this condition as referred to in his submissions.[39]I also took into account the claimant’s assets and liabilities as disclosed and his earnings in his new job. I considered that on the evidence produced the claimant did not have funds to make payment of the sums sought. There was no evidence that the claimant’s earnings would increase and to grant an award as sought would in his particular circumstances be likely to lead to a worsening of his mental wellbeing. I considered taking all these factors into account that it would be appropriate to make a nominal award of expenses against the claimant. He was a layperson suffering from a mental illness and lacked objectivity in considering the merits of his case.[40]The purpose of an award of costs is to compensate the party in whose favour the order is made and not to punish the paying party. It is also the situation that costs orders are the exception rather than the rule in the employment tribunal. I therefore concluded that an order should be made but not one which would be punitive to the claimant. Taking into account all the factors mentioned above I considered an award of £500 would be appropriate and accordingly order the claimant make payment to the respondent of such an amount.