Mr J Scanlan v MML Leisure Ltd and others: 4104002/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104002/2024Venue GlasgowHearing 21 March 2024
Between
Mr Jack ScanlanClaimantMML Leisure Ltd and othersRespondent
Before
Employment Judge P O’DonnellMr B Duffy for claimantLay representative for claimantDate 2 May 2025
JUDGMENT
The judgment of the Employment Tribunal is the claimant’s application for interim relief against the second respondent is granted. The Tribunal orders the continuation of the claimant’s contract of employment from the date of termination of employment (2 March 2024) until the determination or settlement of the complaint. The Tribunal further ordered the second respondent:(i) to pay to the claimant the (net) sum of £858 (being normal pay due to the claimant in the period 2 March 2024 to 16 March 2024) and(ii) from the 24 March 2024 and each week thereafter to pay to the claimant net wages of £429 until the final determination or settlement of the claim.
REASONS
[1]The hearing was held in order to determine the claimant’s application for interim relief under s128 of the Employment Rights Act 1996 arising from his claim for unfair dismissal under s103A of the Act. The claimant brings other claims against the respondents but these are not relevant to the application for interim relief.[2]There was no attendance by any of the respondents. They were all sent Notices of Hearing for this hearing and the Tribunal was satisfied that they had been given the opportunity to attend. The Tribunal did not have any contact telephone numbers or email addresses for any of the respondents so it was not possible to identify any reason why they had not attended the hearing. Given the nature of the interim relief application, this requires to be dealt with expeditiously and without delay and so the Tribunal considered that it was in keeping with Overriding Objective to proceed with the hearing in the absence of the respondents. Evidence & documents[3]Given the nature of the hearing, the Tribunal did not hear live evidence. It was provided with a witness statement from the claimant and a small bundle of documents. Mr Duffy made submissions on behalf of the claimant. For the sake of brevity, the Tribunal will not set these out in detail.
Relevant Law
[4]Section 128 of the Employment Rights Act 1996 provides that: (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief.[5]In order to succeed in an application for interim relief, the claimant must show that it is “likely” that the complaint of unfair dismissal will succeed. The question of what is meant by “likely” has been addressed by a number of authorities which have said that it means “a pretty good chance of success” which means more than just the balance of probabilities (Taplin v C Shippam Ltd [1978] IRLR 450) and that it involves a “significantly higher degree of likelihood” than more likely than not (Ministry of Justice v Sarfraz [2011] IRLR 562).[6]The Tribunal needs to take account of all matters that would require to be determined at the final hearing of the unfair dismissal claim although it does not require to conclusively resolve those matters before deciding on the application for interim relief (Hancock v Ter-Berg [2020] IRLR 97).[7]Where the main or principal reason for dismissal is that the Claimant made a protected disclosure then the dismissal will be unfair under s103A of the 1996 Act. This is one of the categories of “automatic” unfair dismissal where the reason for dismissal alone renders it unfair.[8]A “protected disclosure” is defined in s43A of the 1996 Act as being a qualifying disclosure as defined in s43B made by the worker in accordance with any of ss43C-H.[9]Section 43B states: (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.[10]In order to be a qualifying disclosure, any communication must have sufficient factual content capable of tending to show one of the matters listed in s43B(1) and a mere allegation is not enough (Kilraine v Wandsworth LBS [2018] ICR 1850).[11]The factual accuracy of the allegations is not determinative of whether one of the relevant failures listed in s43B has been or is likely to occur but can be an important tool in deciding whether the worker had a reasonable belief that the disclosure tended to show a relevant failure (Darnton v University of Surrey [2003] ICR 615). The term “likely” in this context requires more than a possibility or risk of a relevant failure (Kraus v Penna Plc [2004] IRLR 260).[12]Any belief on the part of the worker must be genuinely and reasonably held at the time at which the disclosure is made (Kilraine).[13]The question of how the Tribunal should approach the burden of proof in relation to the reason for dismissal in cases involving claims of automatically unfair dismissal was addressed in Kuzel v Roche Products Ltd [2008] IRLR 530 by Mummery, LJ:- “As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced led by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.''[14]The Tribunal reminded itself that, in terms of the application before it today, the relevant claim was that under s103A of the 1996 Act as this was what gave the claimant the right to make the application under s128.[15]The Tribunal also reminded itself that the question to be asked was whether it was “likely”, on the material available to the Tribunal, the claimant would succeed in his claim under s103A. The Tribunal was not making any conclusive findings of fact or law in relation to that claim.[16]For the reasons set out below, the Tribunal is satisfied that, based on the material available to it, the claimant is likely to succeed in his claim under s103A.[17]The information available demonstrates that the claimant disclosed information to his employer (by way of his manager) that the second respondent was operating the bar at which he worked without the necessary alcohol licence. This is clearly a matter which shows or tends to show a matter falling within the scope of s43B(1) either in the basis of subsection (a) or (b). This is, on the face of it, a matter of public interest. In these circumstances, the claimant is likely to succeed in showing that he made a qualifying disclosure.[18]The claimant was dismissed the very next day after making the disclosure. This came out of the blue with the claimant having no previous disciplinary or performance issues. The reason given was a very vague reason that the claimant “no longer fits in” at the business. This very strongly suggests that something had changed and, on the information available, the only thing which had changed was the disclosure made by the claimant.[19]The claimant was also told that he was barred from the premises and the premises of other bars operated by the companies within the first respondent’s group of business. There is no obvious reason for such a draconian measure beyond the claimant’s disclosure.[20]The Tribunal considers that, in light of the circumstances surrounding his dismissal, the claimant is likely to succeed in persuading a Tribunal to draw an inference that his disclosure was the reason for his dismissal. He is, therefore, likely to succeed in his claim under s103A ERA.[21]Mr Duffy confirmed that the unfair dismissal claim is only pursued against the second respondent as they were the claimant’s employer.[22]Given the absence of the second respondent, it was not possible to determine whether they would be willing to reinstate or re-engage the claimant in terms of s129(3) ERA. The powers given to the Tribunal under s129(9) ERA, therefore, are the relevant powers in this case.[23]For these reasons, the Tribunal grants the claimant’s application under s128 ERA and orders the continuation of the claimant’s contract of employment with the second respondent from the date of termination of employment (2 March 2024) until the determination or settlement of the complaint. This means the contract of employment will continue in force for the purposes of pay or any other benefit derived from the employment, seniority, pension rights and other similar matters, from the date of termination of employment (2 March 2024) until the determination or settlement of the claim.[24]The claimant was paid £429 a week net of any deductions. He is a student and has not presently secured any alternative employment. He is not in receipt of state benefits.[25]The Tribunal orders the second respondent to pay the claimant the sum of £858 (being normal pay due to the claimant in the period 2 March 2024 to 16 March 2024) and from the 24 March 2024 and each week thereafter to pay to the claimant net wages of £429 until the final determination or settlement of the claim. Employment Judge O’Donnell
Introduction
[1]The claimant has brought a number of complaints against the respondents arising from his employment with the first respondent and its termination.[2]One of those complaints was a claim for unfair dismissal under s103A of the Employment Rights Act 1996 (ERA) and as part of that claim the claimant sought interim relief in terms of s128 ERA.[3]A hearing to determine that application was listed on 21 March 2024. None of the respondents attended that hearing. The Tribunal granted interim relief against the present first respondent (they were the second respondent at the time) by a judgment sent to parties on 25 March 2024.[4]On 29 March 2024, the first respondent applied for reconsideration of that judgment. This was opposed by the claimant. The present hearing was listed to determine the respondent’s application. Preliminary issues[5]At the outset of the hearing, the Judge explained to the claimant’s representative that he had previously worked with counsel for the respondents who, at the time, had been a trainee in the firm where the Judge had been a partner. It was explained that they had not worked together for over four years.[6]The respondent had sought to add an additional document to the bundle they had prepared for the hearing as well as adduce a video which they would rely on at any final hearing. These had been sent to the Tribunal and the claimant representative by email on the morning of the hearing; one email sent very shortly before the hearing was due to start and the other after the hearing had commenced. Mr Duffy had not received those emails and so the Tribunal did not allow the respondents to adduce these additional items at the present
Evidence
[7]The Tribunal heard evidence from Gavin Boyle who is the operations manager for the first respondent as well as other companies in the same group. He gave evidence to explain why the respondents had not attended the March[8]There was a bundle of documents lodged by the respondents.[9]Given the nature of the hearing, the Tribunal did not hear evidence about the substantive issues of the claim. As with the first hearing, it took account of witness statement from the claimant, the contents of the bundle of documents as well as what both parties said in their respective pleadings.[10]In terms of submissions, Mr Merck relied on what was said in the application for reconsideration which he supplemented orally. Mr Duffy made submissions on behalf of the claimant. For the sake of brevity, the Tribunal will not set these out in detail but will address any particular issue raised in submissions in its decision below.[11]After the hearing concluded, Mr Duffy emailed the Tribunal with further submissions. The Tribunal has not taken account of these and Mr Duffy is reminded that the time and place to present any submissions (or evidence) regarding any issue is at the hearing determining that issue. Findings in fact[12]The Tribunal made the following relevant findings in fact.[13]Mr Boyle is the operations manager for the first respondent as well as other companies within the same group. All of these companies are involved in running hospitality venues in Glasgow.[14]Three sets of correspondence from the Tribunal were received at the first respondent’s address relating to the present claim. Mr Boyle could not recall the exact date but it was not in dispute that it was in advance of 21 March 2024.[15]Mr Boyle opened the correspondence addressed to the first respondent. He also opened the correspondence to another respondent (a limited company) which is no longer a party to these proceedings. He did not open the correspondence addressed to the individual respondent, Mr McIntosh.[16]Mr Boyle looked through both sets of correspondence which he opened. They appeared to him to be similar. He focussed on reading the statement from the claimant and, as he put it, “scanned” the rest of the correspondence. He did notice that Mr Duffy was named as the claimant’s representative and he was familiar with Mr Duffy because he had been involved in separate Employment Tribunal proceedings brought by Mr Duffy against another company within the group.[17]Mr Boyle did not identify that a hearing to determine the application for interim relief had been listed for 21 March 2024. He does not dispute that the notice of that hearing was within the paperwork but, rather, that he missed this when looking through what had been sent.[18]After reading the paperwork Mr Boyle contacted the first respondent’s legal adviser, Ms Barnett, and was asked to send her a copy of the paperwork in electronic format. Mr Boyle could not recall whether he electronically scanned all of the paperwork and believed that he may not have sent all of it.[19]The first respondent only became aware of the hearing when they received the judgment sent to parties on 25 March 2024. Mr Boyle immediately contacted the respondent’s legal adviser for action to be taken in response to this judgment.[20]The application for reconsideration was lodged by email on 29 March 2024.
Relevant Law
[21]The Tribunal has the power to reconsider a judgment under Rule 70 of the Tribunal Rules of Procedure. The only ground on which the Tribunal can reconsider is that it is in the interests of justice to do so.[22]The “interests of justice” test gives the Tribunal a broad but not unlimited discretion when reconsidering a decision. The Tribunal has to give regard to the principle of finality in litigation (Newcastle Upon Tyne City Council v Marsden [2010] ICR 743) and the power to reconsider is not there to deal with matters which should more properly be a matter of appeal (Trimble v Supertravel Ltd [1982] IRLR 451). The Tribunal has to approach the question of whether reconsideration is in the interests of justice by having regard to the justice to be done to both sides of the case (Redding v EMI Leisure Ltd EAT 262/81).[23]It was previously the case that the absence of a party was a specific ground for reconsideration and this would now be a matter which would be determined on the basis of the “interests of justice” test.[24]The case law regarding reconsideration arising from the absence of a party shows that the question is whether the party had a good and genuine reason for their absence (see, for example, Morris v Griffiths 1977 ICR 153, EAT and Lewes Associates Ltd t/a Guido’s Restaurant v Little EAT 0460/08).[25]If it is the carelessness of a party that has led to their absence then this may still provide a genuine and honest reason which should be given weight by the Tribunal in considering the interests of justice (Lawton v British Railways Board EAT 29/80). However, a party who consciously chooses not to attend a hearing will be expected to bear the consequences of that decision (Fforde v Black EAT 68/80).[26]Section 128 of the Employment Rights Act 1996 provides that a claimant can apply for interim relief if the reason or principal reason for their dismissal falls within certain provisions of the Act. For the purposes of this case, the relevant provision is s103A.[27]In order to succeed in an application for interim relief, the claimant must show that it is “likely” that the complaint of unfair dismissal will succeed. The question of what is meant by “likely” has been addressed by a number of authorities which have said that it means “a pretty good chance of success” which means more than just the balance of probabilities (Taplin v C Shippam Ltd [1978] IRLR 450) and that it involves a “significantly higher degree of likelihood” than more likely than not (Ministry of Justice v Sarfraz [2011] IRLR 562).[28]The Tribunal needs to take account of all matters that would require to be determined at the final hearing of the unfair dismissal claim although it does not require to conclusively resolve those matters before deciding on the application for interim relief (Hancock v Ter-Berg [2020] IRLR 97).[29]Where the main or principal reason for dismissal is that the Claimant made a protected disclosure then the dismissal will be unfair under s103A of the 1996 Act. This is one of the categories of “automatic” unfair dismissal where the reason for dismissal alone renders it unfair.[30]A “protected disclosure” is defined in s43A of the 1996 Act as being a qualifying disclosure as defined in s43B made by the worker in accordance with any of ss43C-H.[31]In order to be a qualifying disclosure, any communication must have sufficient factual content capable of tending to show one of the matters listed in s43B(1) and a mere allegation is not enough (Kilraine v Wandsworth LBS [2018] ICR 1850).[32]The question of how the Tribunal should approach the burden of proof in relation to the reason for dismissal in cases involving claims of automatically unfair dismissal was addressed in Kuzel v Roche Products Ltd [2008] IRLR 530 by Mummery, LJ: “As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced led by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.''[33]The Tribunal has to determine whether it would be in the interests of justice to revoke its previous decision granting the claimant interim relief. Mr Duffy made a submission that the test was whether there had been a material change of circumstances but this is not the correct test (he may have been thinking of the test for varying or revoking a case management order but that is a different matter).[34]The first issue which the Tribunal has considered in assessing what would be in the interests of justice is whether the first respondent has an explanation why they did not attend the original interim relief hearing.[35]The Tribunal is prepared to accept the evidence of Mr Boyle that he had missed the notice of that hearing when looking through the initial paperwork sent to the respondents by the Tribunal and that this was a genuine error on his part.[36]Mr Duffy sought to suggest, on behalf of the claimant, that the respondents had deliberately ignored that hearing and effectively chosen not to attend. There was no evidence whatsoever from which the Tribunal could draw such an inference.[37]Further, this theory is inherently implausible given that failing to attend the original hearing was clearly contrary to the interests of the respondent; their absence at the hearing meant that the claimant was able to present an uncontested application for interim relief that was significantly more likely, if not guaranteed, to succeed. The Tribunal can see no plausible motivation for the respondents to deliberately choose not to attend the original hearing.[38]The Tribunal does note that the application for reconsideration was made only 4 days after the interim relief judgment was sent to parties. The Tribunal considers that this shows the first respondent acting almost immediately on receipt of the judgment and certainly without any undue delay. This suggests that they would have responded with alacrity to the application for interim relief and attended the original hearing had they been aware of it.[39]This is not to say that the respondent’s explanation for why they did not attend reflects well on them. A properly diligent reading of the paperwork sent by the Tribunal at the outset of the proceedings would have readily disclosed that an application for interim relief had been made and that a hearing had been listed to determine that application. The failure by Mr Boyle to ascertain this suggests a careless and somewhat lackadaisical approach. The Tribunal notes that he occupies a senior position within the group of companies of which the first respondent is a part and that dealing with paperwork (including correspondence from official bodies such as HMRC or the relevant licencing authority) must be part and parcel of his job.[40]The Tribunal does accept that Mr Boyle had a limited familiarity with the Tribunal process given that he has only been involved in one previous case (a claim brought by Mr Duffy against one of the other companies in the group). However, if anything, the Tribunal considers that a lack of familiarity would cause a reasonable person to take greater care in reading the paperwork from the Tribunal. A person who was not familiar with the Tribunal process would, in the Tribunal’s view, want to ensure that they had fully understood what was going on and what they had to do to respond to the claim.[41]With all that being said, the Tribunal is of the view that there had been a genuine error on the part of the first respondent in that they had not identified the fact that there was a hearing listed to deal with the interim relief application and that this was the reason why they did not attend the previous hearing.[42]The Tribunal then turns to the question of whether the first respondent’s case in respect of the interim relief application would resulted in a different outcome if that had been presented at the original hearing. It goes without saying that if the outcome would have been the same then it would not be in the interests of justice to revoke the original decision.[43]The original decision to grant interim relief had been made because the Tribunal was presented with the claimant’s uncontested case as set out in his ET1 and witness statement. This information clearly set out a case of unfair dismissal under s103A ERA; the claimant alleges he made protected disclosures and was dismissed as a result. On the basis of that information, and with nothing to suggest that the claimant was dismissed for any other reason, the Tribunal concluded that the claimant had satisfied the test for interim relief.[44]The position has now changed; the respondent sets out a case that the claimant was dismissed for misconduct when they had identified from CCTV evidence and a till receipt that the claimant had given drinks to a customer without charging them.[45]Both cases are statable but neither is, on the information presented to the Tribunal, more likely to succeed than the other. The outcome of the unfair dismissal claim will depend on the view taken at the final hearing of the credibility and reliability of the evidence presented at the hearing as well as what inferences (if any) the Tribunal would be prepared to draw from the evidence.[46]This is a case which is not going to rely heavily on documentary evidence beyond the CCTV footage and the till receipt. Rather, most of the evidence will be oral evidence given by witnesses at the final hearing. Given that the Tribunal does not hear such evidence when determining an application for interim relief and is making no findings of fact, the Tribunal can only assess the likelihood of the claimant succeeding on the basis of what is said in the ET1 and ET3 as to what each party is offering to prove. As set out above, the parties are presenting competing narratives as to why the claimant was dismissed with nothing to suggest that one narrative is more likely to win out than the other.[47]The Tribunal bears in mind when making this assessment that, given that the claimant does not have the length of service to pursue a claim of “ordinary” unfair dismissal, the burden of proof lies with him to establish the reason for his dismissal fell within s103A rather than the respondent having the burden of proving a potentially fair reason for dismissal.[48]The Tribunal should be clear that it has come to no conclusions as to the probative value of any of the evidence either side intends to present at the final hearing. Mr Duffy made submissions that the CCTV stills provided at the present hearing only show the claimant doing his job rather than any wrongdoing. This may be correct but any determination about the value of any of the evidence is a matter for the final hearing. At the present time, the Tribunal is only looking at what information is available to come to a view as to whether the claimant is likely to succeed in his unfair dismissal claim.[49]In these circumstances, the Tribunal is of the view that, had the first respondent attended the original hearing and presented their case on interim relief, it would not have concluded that the claim was “likely” to succeed given the competing versions of events and explanations for the claimant’s dismissal.[50]For this reason, and taking account of the fact that the respondent had a genuine reason for not attending the original hearing, the Tribunal does consider that it is in the interests of justice to revoke its previous judgment awarding the claimant interim relief. If the original decision was left in place then the respondent would be subject to an ongoing liability to continue to pay the claimant which they would not have otherwise had.[51]The Tribunal does accept that there is a prejudice to the claimant in that he is deprived of the interim relief and, in particular, the entitlement to the continuing payment of his wages. However, that prejudice is limited given that if he is successful in his unfair dismissal claim then he will be able to recover compensation for the loss of those wages as part of the remedy for any unfair dismissal. Expenses/Preparation time Order[52]In light of its conclusions above, the Tribunal has, of its own motion, given consideration as to whether it should make an award of expenses or a preparation time order against the first respondent in respect of their conduct of the case as it relates to the application for interim relief for the following reasons.[53]The Tribunal has the power to make an award of expenses or a preparation time order (PTO) under rule 76(1)(a) of the Tribunal Rules where it considers that a party has acted “vexatiously, abusively, disruptively or otherwise unreasonably” in either the bringing of the proceedings or the way that the proceedings have been conducted. The Tribunal has a duty under the Rules to consider whether to make an award of expenses or PTO but this is not automatic. Rather, the Tribunal has a discretion whether or not to actually make such an award.[54]It is quite clear that, as a result of the first respondent’s actions, the claimant and his representative have been put to the additional work of preparing for and appearing at the present hearing in order to address the respondent’s application for reconsideration. None of this would have been necessary if the respondent (by way of its officers) had properly read the paperwork sent by the Tribunal and so the question arises as to whether these failings are such that they amount to “unreasonable” conduct of the proceedings.[55]The Tribunal is conscious that parties must be given the opportunity to comment on this before coming to any conclusions and so parties will be given 14 days from the date this judgment is sent to them to lodge written submissions on the issue of expenses/PTO (which should be copied to the other party by way of their representative).[56]The submissions from the claimant will require to clarify whether his representative is charging the claimant for representation as this will determine whether any award is for expenses or for a PTO. The claimant will also need to clarify either the amount of expenses or the hours spent on preparation in respect of, and only in respect of, dealing with the reconsideration application and the present hearing.[57]The Tribunal is of the view that this issue can be determined by way of written submissions rather than putting parties to the time and cost of a further hearing. However, parties are at liberty to make any submissions on whether a hearing should be listed. Case Management[58]The Tribunal was concerned that the issue of the reconsideration application had distracted from the need to progress the claim to a final hearing and that there needed to be further case management to advance the process.[59]The claimant’s representative had, as part of the correspondence which had sought a postponement of the hearing, made an application for an order for the respondents to produce certain documents:a. He sought the CCTV footage relied on by the respondents as demonstrating the claimant’s misconduct. This had been sent by email shortly before the start of the hearing and Mr Duffy had confirmed that he had received it by the time the issues of case management were being discussed. There was, therefore, no need for any Order in respect of this item.b. Mr Duffy had also sought a copy of the till receipt which is also relied on by the respondents as evidence of the claimant’s misconduct. This was included in the bundle for the present hearing although, as Mr Merck accepted, it was not a whole copy given that the top had been cut off. The Tribunal ordered the first respondent to provide the claimant’s representative with a whole copy of the receipt within 14 days of the date of this hearing.c. A copy of the health and safety forms which it is said the claimant and other employees had been asked to sign on or around 1 March 2024 was also sought. The Tribunal directed that, before any decision is made on this Call, the first respondent should provide any comments within 14 days of the date of this hearing.[60]It was agreed that the case was ready to proceed to a final hearing. This will be a hearing in person before a full Tribunal and will determine both liability and remedy.[61]The Tribunal made the directions below for the preparation for the final[62]The claimant will provide, to the respondent, a preliminary Schedule of Loss within 28 days of the date of this hearing. At the same time, the claimant will provide a preliminary Schedule of Mitigation setting out the steps he has taken to find a new job or otherwise minimise his losses.[63]A final version of both Schedules will be lodged with the Tribunal and copied to the respondent no later than 7 days before the final hearing.[64]The Tribunal directed that there should be a joint file of documents for the full hearing. The respondent’s agent will collate and prepare this.[65]The Tribunal made the following directions for the preparation of the joint file:a. Parties will exchange a list of the documents they wish to include in the file within 28 days of the date of this hearing.b. No later than 7 days after that exchange the respondent’s representative will identify any documents on the claimant’s list which they do not have in their possession.c. No later than 7 days after that the claimant’s representative will provide to the respondent any such documents identified.d. The final version of the file will be prepared and available to each party no later than 28 days before the final hearing. The version of the file available to parties can be in electronic or paper format. If the claimant’s representative has a preference then he should discuss this with the respondent’s agent.e. Five copies of the final version of the file will be lodged with the Tribunal no later than 7 days before the final hearing. These should be provided in paper format.[66]Unless there are genuine issues with the admissibility of any particular document, neither party should seek to obstruct a particular document being included in the joint bundle. If there are issues of relevancy then these can be addressed at the final hearing in circumstances where the Tribunal has heard evidence and can judge the relevancy of any document. If there are issues of admissibility then these should be raised with the Tribunal at as early a stage as possible to allow the issue to be determined before the final[67]Parties are reminded that the Tribunal hearing the case will not read the file from cover to cover and if either party wants the Tribunal to take account of any documents then the document must be referred to by a witness in their evidence.[68]If there are any documents which parties consider they require from the other party in order to prove their case then they should seek any such documents on a voluntary basis. If a document is not provided voluntarily then parties can make an application to the Tribunal (copied to the other party) seeking an Order for production of the relevant documents. Any request for documents or application for an Order should be made well in advance of the final[69]The claimant intends to call evidence from 3 witnesses and the respondent from 2 witnesses.[70]It was agreed that 4 days would be required to hear evidence and submissions.[71]A final hearing for this case was listed at the Glasgow Employment Tribunal on 28-31 October 2024. A formal Notice of Hearing will follow.
Introduction
[1]The present hearing has been listed to determine the claimant’s applications for expenses and wasted costs.[2]These applications arise from the proceedings related to the claimant’s interim relief application. A short summary of the relevant events is set out below and this has been taken from the full findings of fact in the Tribunal’s judgment dated 30 July 2024.a. The first respondent, Pintplace Ltd, did not attend a hearing on 21 March 2024 to determine the claimant’s interim relief application. A judgment awarding interim relief against this respondent was issued dated 22 March 2024.b. The first respondent applied for reconsideration of this judgment. They gave the explanation for their non-attendance at the hearing that they had not properly read the documents served on them with the claimant’s ET1 and had missed the fact that a hearing had been listed on 21 March 2024.c. The judgment awarding interim relief was reconsidered and revoked for the reasons set out in the judgment of 30 July 2024. The Tribunal, taking account of its duty to consider making an Order for expenses where appropriate, invited comments from parties on the question of whether such an Order should be made in light of the first respondent’s explanation why they did not attend the March hearing.[3]The claimant subsequently made an application for expenses dated 13 August 2024. The grounds of the application goes beyond simply the respondent’s failure to attend the March hearing and makes a number of other allegations which are said to amount to unreasonable conduct of the proceedings.[4]This application was followed by an application for a wasted costs order against the first respondent’s representative dated 27 August 2024. This is made on effectively the same grounds as the application for expenses although there are some differences.[5]The respondent objects to both applications. Parties indicated that the applications could be dealt with on the papers and so the present hearing in chambers was listed.[6]Both agents produced written submissions. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.[7]The Tribunal is using the Scots Law term of “expenses”; the Tribunal Rules use the term “costs” but Rule 74(1) makes it clear that, in Scotland, this term is to be read as a reference to expenses.
Relevant Law
[8]Rule 75 of the Employment Tribunal Rules of Procedure 2013 sets out the definition of a cost order:(1) A costs order is an order that a party ('the paying party') make a payment to— (a) another party ('the receiving party') in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b) the receiving party in respect of a Tribunal fee paid by the receiving party; or (c) another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual's attendance as a witness at the Tribunal.(2) A preparation time order is an order that a party ('the paying party') make a payment to another party ('the receiving party') in respect of the receiving party's preparation time while not legally represented. 'Preparation time' means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.(3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.[9]The relevant provisions of Rule 76 sets out the test to be applied by the Tribunal in considering whether to grant a costs application: (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; …[10]The principle in the Rules is that costs do not follow success as they do in other areas of civil litigation. Rather, the Tribunal has power to make awards of costs in the circumstances set out in the Rules. In this case, the relevant provision is Rule 76(1)(a) which gives the Tribunal a discretion to award costs of the conduct of a party meets the threshold test set out in the Rule. 11. ‘Unreasonable’ is to be given its ordinary English meaning and is not to considered as something similar to ‘vexatious’ (Dyer v Secretary of State for Employment EAT 183/83).[12]The Tribunal’s discretion to award costs is not fettered by any requirement to link any unreasonable conduct to the costs incurred (McPherson v BNP Paribas (London Branch) [2004] ICR 1398 and Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT). However, that is not to say that any issue of causation is to be ignored and the Tribunal must have regard to the “nature, gravity and effect” of any unreasonable conduct (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78).[13]The Tribunal has the power to make a wasted costs order under Rule 80: (1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a) as a result of any improper, unreasonable or negligent act or (b) omission on the part of the representative; or which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”.[14]A three stage test was set out the Court of Appeal in Ridehalgh v Horsefield and other cases 1994 3 All ER 848, CA, for to adopt in respect of wasted costs orders. This test has been applied in the context of Employment Tribunal proceedings (Ratcliffe Duce and Gammer v Binns (t/a Parc Ferme) EAT 0100/08).a. First, has the legal representative acted improperly, unreasonably, or negligently?b. Secondly, if so, did such conduct cause the applicant to incur unnecessary costs?c. Thirdly, if so, is it in the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs?[15]Ridehalgh also set out what was meant by “improper, unreasonable or negligent conduct”:a. ‘improper’ covers, but is not confined to, conduct that would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penaltyb. ‘unreasonable’ describes conduct that is vexatious, designed to harass the other side rather than advance the resolution of the casec. ‘negligent’ should be understood in a non-technical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.[16]The Tribunal will, first of all, deal with the application for expenses and wasted cost in respect of the discrete issue of the first respondent’s non-attendance at the March hearing before dealing with the other grounds of the two applications.[17]The first respondent accepts that there had been negligence on the part of the manager who dealt with the claim when it was served on them in failing to read the correspondence in full and identify that the March hearing had been listed.[18]The first respondent does not, in their submissions, make any argument about whether or not this amounts to unreasonable conduct. The claimant’s application asserts that it does but provides no explanation why it is said that the threshold has been met.[19]The Tribunal does consider that the first respondent’s negligence did amount to unreasonable conduct of the proceedings. Although the correspondence which the respondent received when the claim was served on them is lengthy, it is incumbent on them to read this properly. They are facing legal action and the Tribunal considers that a reasonable person in such circumstances would want to understand what is involved in that and what they have to do.[20]In particular, the details of the interim relief hearing are contained in a separate Notice of Hearing rather than being included in the middle of a longer document where it might have been more likely to be missed. The Notice of Hearing is headed “Urgent” and is described as a Notice of Hearing. The date and time of the hearing is clearly set out. Anyone reading that document would be in no doubt that a hearing had been listed and when it had been listed.[21]Further, the Tribunal considers that a reasonable respondent would have sent all of the correspondence to their lawyer but that was not done in this case. If it had then the Tribunal considers that the March hearing would have been identified and the first respondent would have attended.[22]For all these reasons, the Tribunal considers that the first respondent’s failure to attend the March hearing amounts to unreasonable conduct of the proceedings and that the test for an award of expenses is met. The Tribunal will address the amount of the award below once it has considered that other grounds of the two applications.[23]The Tribunal refuses the application for wasted costs made on the basis of the first respondent's failure to attend the March hearing. There was no evidence that this failing was, in any way, caused by or attributable to the conduct of the respondent’s representative.[24]The application for wasted costs proceeds on the basis of pure speculation. For example, there is reference to the representative beginning the process of gathering evidence to defend the claim shortly after the claim had been served on the respondent. However, this does no more than show the respondent and their representative exercising due diligence in preparing to defend the claim. The Tribunal does not consider that any inference can be drawn from this and it certainly does not mean that the first respondent’s agent knew of the March hearing.[25]Similarly, the claimant makes reference in the wasted costs application to messages between the claimant and another person regarding his case which allegedly show that people within the respondent did know about the March hearing in advance of that hearing. The claimant’s representative lodged a copy of these messages on the morning of the present hearing. The Tribunal has placed little weight on these messages for the following reasons; they are undated; they have not been spoken to by a witness in evidence; the respondent has had no opportunity to reply to these; they were not produced at the reconsideration hearing in July 2024 despite, on the face of it, being in the claimant’s possession and relevant to the reconsideration application.[26]However, the most important reason why no weight is being placed on these messages is that, in the context of the wasted costs application, they do not, even taken at their highest, demonstrate that the first respondent’s failure to attend the March hearing was caused by the conduct of their representative.[27]Turning now to the other grounds on which the expenses and wasted costs application are made, the Tribunal has considered these and, for the reasons set out below, the Tribunal refuses the applications made on these grounds.[28]First, the application makes reference to a “phishing” email sent by the respondent’s representative to the claimant in April 2024. The email in question is not “phishing” in the sense of some attempt to fraudulently gain security credentials or similar information. Rather, it is a costs warning of the kind often sent in litigation and the information requested was intended to explore the extent to which the proceedings (including the basis of the claim) had been driven by the claimant or his representative. The email was properly sent to the claimant because his representative had come off the record at the time.[29]The Tribunal accepts that someone unfamiliar with litigation would be worried by such correspondence but that is not enough for the email to amount to unreasonable conduct of the proceedings or improper, unreasonable or negligent conduct by a representative.[30]Second, the application for expenses makes reference to threats against the claimant and witnesses as well as homophobic and discriminatory slurs being made against the claimant’s representative. No detail of these have been provided and there is no evidential basis on which the Tribunal could conclude that such alleged conduct had occurred.[31]Third, the claimant makes reference to the fact that the first respondent will not engage in settlement discussions with him. A decision to defend a case rather than settle it is not, in itself, unreasonable conduct nor is it improper, unreasonable or negligent conduct by a representative.[32]Fourth, the claimant relies on two instances where the first respondent was late in replying to Tribunal correspondence. The Tribunal does not consider that the extent of the delay in each instances was such that it met the threshold for unreasonable conduct or improper, unreasonable or negligent conduct by a representative.[33]Fifth, the claimant makes reference to the first respondent refusing to include the claimant’s document in their file of productions for the reconsideration hearing. Again, no evidence of this has been produced; the claimant’s representative made similar assertions in earlier correspondence which were disputed by the respondent’s agent. Neither side has produced any email correspondence or contemporaneous attendance notes which show what discussions were had between them in relation to the file of productions. There is, therefore, no evidential basis on which the Tribunal could conclude that the alleged conduct took place at all, let alone that it met the relevant tests.[34]Sixth, the claimant complains about the respondent producing documentary evidence on the morning of the reconsideration hearing in July without prior notice. However, in the present case, the Tribunal did not allow the respondent to adduce that evidence at the hearing.[35]Finally, the application for expenses make submissions about the complexity of the case and the need for the case to be thoroughly prepared. The Tribunal does not disagree with these assertions but does not consider that this is relevant to whether the conduct by the first respondent or their agent meets the applicable tests for an award for expenses or wasted costs. Similarly, the submissions about the impact on the claimant of the alleged conduct is not relevant; the question for the Tribunal is whether the conduct is, for example, unreasonable and that is not determined by the impact on the claimant. Litigation is an inherently stressful process and the fact that such stress has had an impact on a party does not mean that the other party has conducted themselves unreasonably.[36]Having taken account of the other matters relied on by the claimant in his two applications, the Tribunal does not consider that the relevant tests are met in respect of the grounds relied on by the claimant beyond the first respondent’s failure to attend the March hearing. Other than in respect of that matter, the applications are refused.[37]The Tribunal now turns to the question to the amount of the award. The Tribunal has the power to make an award of expenses in a specified amount(up to £20000) under Rule 78(1)(a). It reminds itself that expenses are compensatory and not punitive (Lodwick v Southwark London Borough Council 2004 ICR 884, CA) and that any award should be limited to what has been reasonably and necessarily incurred (Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA).[38]The costs which have been reasonably and necessarily incurred by the claimant due to the respondent’s failure to attend the March hearing relate to the need to respond to the subsequent application for reconsideration. This is limited to setting out the claimant’s objection to the application, preparing for the reconsideration hearing and attendance at that hearing.[39]The Tribunal does not consider that any other work done by the claimant’s representative during the period between the reconsideration application and the July hearing was reasonably and necessarily incurred as a result of the relevant conduct of the proceedings. For example, the schedule accompanying the claimant’s expenses application includes work which is wholly unrelated to the reconsideration application.[40]The claimant seeks a total of 30 hours in respect of the work which the Tribunal considers was reasonably and necessarily done on the claimant’s behalf. The Tribunal considers that this is manifestly excessive. For example, the claimant seeks 5 hours in respect of drafting the email of 29 March 2024 objecting to the reconsideration application. This was a two page email which the Tribunal does not consider it would take 5 hours to draft. More importantly, the application from the respondent was received by the Tribunal by email at 5.17am on 29 March 2024 and the email objecting to it was received at 8.37am on the same day. Even assuming that the claimant’s representative saw the application as soon as it was received, 5 hours had not passed between the two emails.[41]Similarly, the claimant has sought 10 hours for his representative to review the respondent’s file of productions for the reconsideration hearing. This bundle ran to no more than 58 pages with more than half of it comprised of documents with which the representative would already by familiar such as the ET1, ET3, the interim relief judgment from March 2024 and the reconsideration application. The Tribunal considers that 10 hours to review approximately 20 pages of documents is grossly exaggerated.[42]The same applies to the 15 hours sought in relation to preparation for the reconsideration hearing. It is worth noting that this is in addition to the 10 hours sought in relation to reviewing the respondent’s documents. The claimant relied on the same documents at the reconsideration hearing as he did at the March hearing and so there was no additional work involved in preparing the claimant’s file of productions. There is also the fact that the claimant’s agent had already prepared to address the Tribunal on the interim relief application for the March hearing and so was not starting from scratch but, rather, refreshing his memory.[43]The Tribunal is not prepared to accept the figures advanced on behalf of the claimant and, instead, will assess how long it considers would be reasonable for the claimant’s agent to spend drafting the objection to the reconsideration application and preparing for the case in addition to the time actually spent at the hearing in July (which lasted 1.5 hours).[44]In the application for expenses, the claimant’s representative has describes himself as having two years’ experience of representing claimants and respondents in the Tribunal in a range of cases including complex cases. The Tribunal considers that a total of 3 hours for drafting the objections and preparing for the hearing would be a reasonable amount of time for a representative with the level of experience described.[45]The Tribunal, therefore, bases its award on a total of 4.5 hours work reasonably and necessarily incurred as a result of the respondent’s conduct.[46]The claimant’s application seeks payment at £200 an hour on the basis that this is reasonable given the representative’s experience. The Tribunal has not been provided with any letter of engagement or terms of business agreed between the claimant and his representative. There is, therefore, no evidence that the claimant is actually being charged at this hourly rate. The only information available to the Tribunal is that the representative is engaged on a “no win, no fee” basis with a retainer of £3000.[47]The Tribunal considers that £200 an hour is high for an unqualified representative and is in excess of what might be charged for a solicitor of similar experience although some firms of solicitors may charge more.[48]Although the Tribunal is dealing with an issue of expenses rather than a preparation time order, it does note that the current hourly rate for preparation time orders is £44 an hour and the Tribunal takes that as a minimum base line in assessing the amount to be awarded. In the absence of any evidence as to how any fees which the claimant may pay will be calculated and given the status of the claimant’s representative, the Tribunal does not consider that there has been anything provided to it which would justify the Tribunal awarding more than this minimum hourly rate.[49]The respondent has not made any submissions about its ability to pay any expenses. Given the amount to be awarded, there is nothing to suggest that the respondent could not pay.[50]The Tribunal therefore orders the first respondent to pay the claimant the sum of £198 in expenses. P O’Donnell
Introduction
[1]The respondent made an application for wasted costs under Rule 78 of the Employment Tribunal Rules of Procedure 2024 on conclusion of the claimant’s claim for automatic unfair dismissal and detriment as a result of making a protected disclosure. As part of their judgment in that claim, the Tribunal found that the claimant was not a credible witness and had not made the disclosure as claimed.[2]The application for wasted costs was made on 7 May 2025 but the hearing of the application was delayed by an appeal against the substantive decision, party availability and tribunal availability. It should be noted that both the respondent and the claimant have referred to the rule numbers under the 2013 iteration of the rules. The decision below has considered and decided the case based on the 2024 rules as they were applicable at the time the application was made.[3]The application was accompanied by a schedule of expenses, which was attributable to work undertaken by Ms Barnett, and an invoice from Counsel. Counsel’s invoice covered work up to 28 October 2024 but not the evidential hearing which took place on 29, 30 and 31 October 2024 and 10 March 2025. The total costs sought on 7 May 2025 came to £16,510.01. In the respondent’s bundle, provided to Mr Duffy on 2 March 2026, Ms Barnett updated the expenses sought, noting that the only expenses sought for her work were those attributable to Mr Duffy’s conduct. She also included an invoice from Counsel dated 2 June 2026 covering Counsel’s expenses for the evidential hearing which had not been previously disclosed. The total expenses now sought were reduced to £14,280.02.[4]As the parties could not agree the content of a joint bundle, separate bundles were lodged.[5]The claimant’s bundle included two documents which purported to be witness statements of Mr Duffy and Mr Scanlon, the claimant. These statements were not ordered by the Tribunal nor were they compliant with the Practice Direction on the use of witness statements in Scotland. While Mr Duffy read from his “witness statement” when making his submission, it was explained to him that this document was not a witness statement per se and as Mr Duffy was not in evidence, would be taken as a submission unless Mr Duffy wished to give evidence in the normal way with cross examination by the respondent. Mr Duffy continued by way of submission only. Mr Scanlon was not called to give evidence about his “witness statement” or any emails contained in the claimant’s bundle.[6]On 4 March 2026, Mr Duffy made a written application to exclude the second invoice from Counsel which formed part of the respondent’s bundle on the basis that this was not part of the original application and that he did not have sufficient time to consider this. This was considered at the outset of the hearing. The invoice post-dated the originating application. The Tribunal decided to allow this invoice to be admitted as there is no obligation to include invoices or evidence of expenses at the time of making the wasted costs application, that in correspondence which took place between May and November 2025 it was clear that the respondent would provide an update to or an itemising of the expenses sought prior to the hearing and that the invoice was provided to Mr Duffy on 2 March 2026 in advance of the hearing on 5 March 2026. While it was not provided to Mr Duffy seven days prior to the hearing as per an earlier Tribunal order, the invoice was given in a reasonable time to allow Mr Duffy to consider it. Further the invoice covered Counsel’s attendance at the final hearing, which was known to Mr Duffy who was also in attendance at that hearing. Finally, the overall expenses sought by the respondent had decreased rather than increased.
Relevant law
[7]Rule 78 of the Employment Tribunal Rules of Procedure 2024 outline that a wasted costs order can be made against a representative in favour of a party who has incurred wasted costs. Costs are taken to mean expenses in the Scottish jurisdiction and the terms are used interchangeably.[8]Rule 78(4) defines a representative as “a party’s legal representative or lay representative or any employee of such representative, but it does not include a person who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit”[9]Wasted costs are defined in Rule 78(5) as costs incurred “as a result of any improper, unreasonable or negligent act or omission on the part of the representative.”[10]The Court of Appeal in Ridehalgh v Horsefield 1994 3 All ER 848, CA set out a three stage test that should be applied when considering an application for wasted costs. Firstly, the Tribunal should assess whether the respondent has acted improperly, unreasonably or negligently. Secondly, they should consider if this conduct occurred, whether it caused the applicant to incur unnecessary costs. Thirdly, if the applicant did incur unnecessary costs/expenses, is it in the circumstances just to order the representative to compensate the applicant for all or part of the relevant costs.[11]When looking at the phrase improper, unreasonable or negligent, the Court of Appeal found that: "Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. "Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.[12]They found that ‘negligent’ is the non-technical way to denote failure to act with the competency reasonably expected of ordinary members of the profession.[13]The Court of Appeal in Ridehalgh and subsequent decisions (Ratcliffe Duce and Gammer v Binns (t/a Parc Ferme) EAT 0100/08 and Medcalf v Mardell and ors 2002 3 All ER 721) have made clear that pursuit of a hopeless case does not bring a representative’s conduct into the realm of improper, unreasonable or negligent conduct. It is a higher bar than unreasonable conduct under a general costs order. Rather, wasted costs is concerned with conduct that amounts to an abuse of process. As per Sir Thomas Bingham in Ridehalgh It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they were not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on ex parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.[14]For the second part of the test, it must be established that the wasted costs are caused by the improper, unreasonable or negligent conduct. If such conduct is found, but no wasted costs have resulted from this conduct, an order should not be made. Costs are not punitive.[15]The third part of the test provides the Tribunal with discretion in terms of granting the application. Even if the first and second part of the test are established, the Tribunal has the discretion whether or not to grant the order. There are various factors which the Tribunal should consider when exercising their discretion which include the representative’s ability to pay, cost warnings made, late withdrawals, multiple tribunal claims. The relevance of the factors considered by the Tribunal will depend on the facts and circumstances of the case before it. Submissions[16]In lodging his bundle, Mr Duffy provided a detailed document entitled “Claimant’s representative’s written submissions in response to application for wasted costs order under Rule 76(1)(a)” which was dated 19 February 2026. This was not directed by the Tribunal and Mr Duffy explained at the outset of the hearing that this was his formal response to the application. Ms Barnett provided a copy of her written submissions in response to which Mr Duffy produced a further written submission document. Both parties made oral submissions at the hearing, based on their written submissions and parties were assured that their written submissions or responses would also be considered in full. Save for what is set out below, for brevity the Tribunal has not outlined each point raised in submissions from each party but have considered these in detail in coming to their decision.[17]It should be noted that both in the originating application by Ms Barnett and in Mr Duffy’s written submission and response, case law which does not exist is cited, quotations from judgments are included which were never made in those judgment, rules are misstated and inaccurate case law summaries and findings are referred to. It is the responsibility of the parties to ensure that the legal basis of their position is true and accurate. This is particularly the case if parties use AI. Parties should not quote from case law unless they are confident that said quotation was actually made in the judgment in question. Parties should not advance to the Tribunal the position that a higher court or tribunal has decided a particular point in a particular way without checking whether the case actually decided the point they are advancing.[18]Decision Was Mr Duffy a representative as per Rule 78(4)?[19]The Tribunal found that Mr Duffy was a representative in pursuit of profit.[20]The respondent position was that Mr Duffy previously held himself out as a representative in pursuit of profit in this case, acting on a no win no fee basis, noting that a conditional fee arrangement is capable of constituting a financial interest in the outcome of proceedings.[21]The position put forward by Mr Duffy was that he was acting on a pro-bono basis only, that there was no expectation of a fee from the claimant and that the claimant made no payment to him at any time. He referred to his witness statement, a statement from the claimant and email correspondence in the bundle to underpin this point. These documents, as explained to Mr Duffy at the time, were not in evidence and he was given the opportunity to give evidence if he wished. He continued by way of submission.[22]Mr Duffy’s position contradicted submissions previously made by him to the Tribunal on the feeing arrangements between himself and the claimant. Mr Duffy applied on 13 August 2024 for a preparation time order (PTO) on foot of the respondent’s reconsideration application and subsequent hearing. In applying for the preparation time order, Mr Duffy emailed the Tribunal as follows: “In accordance with your directions, I can confirm that I am charging Mr. Scanlan for my representation on a no win no fee basis with a £3,000 retainer.” And “I respectfully submit that a PTO of £16,450 would be appropriate. This figure is based on an hourly rate of £200 which I believe is reasonable considering my focused experience in employment law.”[23]This email was referred to in Mr Duffy’s February submissions at paragraph 69 and March submissions at paragraph 37 but misquotes the email as follows: In my email to Employment Judge O’Donnell of 14 August 2024 I explained: “I represent the claimant on a no win no fee basis with a £3,000 retainer and no fees are charged to the claimant beyond this….The £200 hourly rate was a suggested amount for the PTO calculation, reflecting my specialised expertise in employment law.”[24]There is no 14 August 2024 email, only an email of 13 August 2024.[25]The Tribunal asked Mr Duffy about the contents of this email. Mr Duffy maintained that the hourly rate of £200 was not in fact charged to the claimant but was an estimate for the Tribunal’s use when calculating the preparation time order. This is not clear on reading the 13 August email which makes no reference to an estimated hourly rate but instead explains how he came to charge £200 per hour. In respect of the contingency fee arrangement Mr Duffy responded that the claimant did not in fact pay a retainer referenced in that email and that Mr Duffy expressed himself “poorly” when making this assertion of a no win no fee arrangement in his application on 13 August 2024.[26]Mr Duffy submitted that the fact he sought a PTO was determinative of the pro-bono nature of his representation as, in his view, a PTO is for the benefit of a claimant not a representative. (This is incorrect. A preparation time order is granted in favour of a receiving party, meaning a party entitled to be paid expenses as per Rule 72. It compensates the receiving party for the actual time spent working on the case in certain circumstances. It is not a form of non-pecuniary or general compensation.) He submitted that a wasted costs application would show he was a representative but he did not make such an application, focusing on the PTO. In fact, Mr Duffy did make a wasted costs application on 27 August 2024 on the basis that the claimant had incurred costs. The schedule of costs attached also noted an hourly rate of £200 per hour.[27]The Tribunal considered that the change in position, from contingency fee to pro-bono representation, arose at a point where potential liability attached to Mr Duffy for the respondent’s expenses. The explanation that he expressed himself poorly in August 2024 seems incongruous as the email details a very specific fee arrangement which is antithetical to acting pro-bono. The explanation that this email was prepared with the use of AI does not assist. If AI was used, it remained the responsibility of Mr Duffy to ensure that what he presented to the Tribunal was true and accurate. No explanation as to why Mr Duffy took the decision to act pro-bono on behalf of the claimant, who was a friend of a friend as per his submission, save for that he felt the claimant had been treated unfairly by his employer. Representation in this case would have taken up a substantial amount of Mr Duffy’s time, quite apart from the lengthy hearing, as this was a case that saw considerable applications and correspondence between the parties.[28]We considered the cases cited by Mr Duffy to underpin his position, particularly Jackson v Cambridge County Council and others UKEAT/0402/09 which is an EAT case and so binding, but it was distinguished on its facts.[29]Taking all of this into account, the Tribunal did not accept the submission that Mr Duffy was acting on a pro-bono basis and so not in pursuit of profit. Instead, we determined that the August 2024 emails were an accurate reflection of the arrangements between Mr Duffy and the claimant. Mr Duffy was acting on a contingent fee arrangement and so in pursuit of profit as per Rule 78(4). Did Mr Duffy act improperly, unreasonably or negligently?[30]The respondent’s application was that Mr Duffy’s conduct came within this definition as he ‘founded the claim on a knowingly false narrative’; he made three successive applications during the course of the final hearing which were abusive; and he misused tribunal time and resources requiring a fourth hearing day. In terms of their submission, the respondent focused on the first ground - that the claim was ‘founded on a false premise’. The submission also asserted that the volume and content of correspondence from Mr Duffy arose from ‘the persistence in a false factual premise and the refusal to accept procedural rulings.’[31]As there were no submissions from the respondent on the successive applications during the course of the final hearing and the misuse of tribunal time requiring a fourth day, the Tribunal has not made a decision on these points, instead looking at the respondent’s position was that Mr Duffy’s conduct was unreasonable, improper and negligent as the case was founded on a false premise.[32]The basis of the respondent’s submission and application was the finding by the Tribunal in the substantive judgment that the claimant “understood at the time of his dismissal that he was being dismissed for providing free or discounted drinks” which contradicted the narrative in his ET1 that he was dismissed without reason and when he pressed for one, he was told that he did not fit in.[33]In considering if Mr Duffy’s conduct was unreasonable, improper or negligent, we were required to consider if it amounted to an abuse of process. Pursuing a case known to be dishonest is an example of an abuse of process (Ridehalgh).[34]The respondent’s submission was essentially that if the claimant knew at the time of dismissal that he was dismissed for giving out free or discounted drinks, Mr Duffy also had this knowledge and he pursued the case in any event.[35]Mr Duffy for his part submitted that the substantive judgment did not make any findings that his conduct was improper or unreasonable. That does not take us anywhere as the purpose of the substantive hearing was to decide whether the claimant was dismissed for making a protected disclosure. It would not be appropriate within the context of that judgment to make findings on Mr Duffy’s conduct. That is the purpose of this expenses hearing – to consider if Mr Duffy’s conduct amounts to improper, unreasonable or negligent conduct which resulted in wasted costs for the respondent.[36]Mr Duffy maintained in his oral submission that he was simply following his client’s instructions and he was entitled to rely on these. He submitted that every respondent will deny a claimant’s case and he had no reason to disbelieve what the claimant was telling him.[37]He went further than this in his written response and specifically addressed the question about when he became aware that he could or should not rely on the claimant’s instructions. In his written response, Mr Duffy stated at paragraph 167 When did I first know the narrative was false? Not until the CCTV was shown and the Claimant confirmed in cross-examination (November 2024) that he had been told about the drinks allegation. At that point I did not attempt to maintain the false narrative or mislead the Tribunal. I worked with the evidence as it emerged.[38]We did not accept the respondent position that Mr Duffy would have known at the commencement of litigation that the claimant was dismissed for giving out free or discounted drinks. There was nothing to substantiate this assertion. We are entitled to accept Mr Duffy’s submissions that on 29 October 2024 he had knowledge upon review of the CCTV footage that the claimant’s narrative was false. We note the further caveat from Mr Duffy that the cross examination confirmed the claimant had been told about the drinks allegation. However this point came out in the claimant’s examination in chief during the following exchange rather than on cross examination: Mr Duffy -When were you called to the office? The claimant - maybe 25 minutes or 30 minutes later Mr Duffy - Who was present? The claimant -The three managers Bill Zach and Paddy Mr Duffy - What did they say? The claimant - I walked in and they accused me of giving out free drinks to customers. Mr Duffy -Did they have any evidence of this? The claimant - They pulled up CCTV and showed me till receipts. I was trying to explain it wasn’t what it looked like but they kept talking over me.[39]Based on Mr Duffy’s own submission, he was aware on 29 October 2024 that the claimant was relying on a false narrative in pursing his claim. He was provided with a copy of the CCTV in or around 11.30am and the claimant’s examination in chief took place that day after the Tribunal decided to admit the CCTV, finishing in or around 15.40pm. Giving Mr Duffy the benefit of the doubt, it was clear to him by 15.40pm on 29 October that the claimant was relying on a false narrative.[40]With this knowledge, Mr Duffy continued to pursue the case for a further three days – 30 and 31 October 2024 and 10 March 2025. He ought at that time to have advised the claimant to withdraw his claim or if the claimant was insisting on continuing with the hearing, to withdraw from acting. To continue to act on behalf of a claimant where he is aware the basis of his claim is false, is to lend assistance to proceedings known to be dishonest and amounts to an abuse of process. This amounts to unreasonable and improper conduct under Rule 78.[41]Deciding that a representative is participating in an abuse of process is not a decision the Tribunal takes lightly. We respect and agree with the caselaw which clearly states that a representative should not be subject to wasted costs for hopeless or misconceived cases. What distinguishes those cases from the circumstances before us is that Mr Duffy by his own admission confirmed that he knew the claimant’s case was based on a false narrative on 29 October and yet continued to act. The Tribunal cannot disregard or ignore that. Doing so is an abuse of process. Did the respondent incur costs as a result of this unreasonable, improper or negligent conduct?[42]Having decided there was an abuse of process from 29 October 2024 onwards, it is at that point that the respondent potentially incurred costs as a result of this unreasonable and improper conduct. None of the costs prior to that date can be said to result from that conduct and so are disregarded. We also disregard costs arising from the 29 October itself.[43]The final hearing continued for three further days after Mr Duffy became aware of the claimant’s false narrative, 30 and 31 October and 10 March. The respondent was put to the cost of defending the action and Counsel were instructed to undertake the advocacy at the hearing. Counsel’s invoice confirms his cost of £1,250 plus 20% VAT per day of hearing. His invoice also covers a £50 plus Vat consultation fee with witnesses on 21 November 2024.[44]Mr Duffy’s position on this invoice was that as it was unpaid, it was not a cost incurred by the respondent. He provides a quotation from Master of the Rolls in Ridehalgh that “an order cannot be made unless the complainant proves the cost has been incurred.” This quotation is not in fact included in that judgment. At most the judgement states …the court has jurisdiction to make a wasted costs order only where the improper, unreasonable or negligent conduct complained of has caused a waste of costs and only to the extent of such wasted costs. Demonstration of a causal link is essential. Where the conduct is proved but no waste of costs is shown to have resulted, the case may be one to be referred to the appropriate disciplinary body or the Legal Aid authorities, but it is not one for exercise of the wasted costs jurisdiction. This submission is therefore not accepted.[45]Mr Duffy also submitted that there is no breakdown of what this invoice covers or when this work was done. This is not accepted as the invoice plainly shows dated entries which correspond to the hearing, with ‘employment tribunal’ as the description, as well as a dated entry for witness consultation. Each entry has an individual cost plus Vat.[46]The Tribunal found that Counsel’s invoice for the work undertaken past 29 October 2024 was a cost incurred. The respondents engaged the services of Counsel to undertake the Tribunal advocacy. Counsel was in attendance and undertook the advocacy. This is not disputed or if it is, it is not accepted given that Counsel plainly conducted the final hearing for the respondents. That representation came at a cost and the Faculty Services have provided an invoice in respect of the cost. The relevant invoice was disclosed in advance of this expenses hearing. There is no ambiguity as to what this invoice relates.[47]In the plain understanding of the term, this was a cost incurred by the respondents.[48]We have not been taken to any authorities which suggest that the costs must in fact have been discharged or paid. Parties referred to R (Factortame Ltd) v Secretary of State for Transport (No.8) [2003] QB 381 on this point but both parties have misconstrued what this case decided, stating that it dealt with the question of costs under a pre-existing insurance arrangement. In fact that case was concerned with whether the claimants could recover fees for an expert witness –specifically an accountancy firm – where there was an agreement to pay said firm a fee of 8% of the final settlement received. The case was concerned with whether this agreement was champertous or legally valid and enforceable. This case does not say what either Ms Barnett nor Mr Duffy says that it does and the quotation bearing to be at paragraph 17 is not found in the judgement.[49]With the schedule of expenses covering Ms Barnett’s fees on page 2 of her bundle, the only potential expense which may relate to Mr Duffy’s conduct is the final entry “extended hearing preparation -1.5 hours additional preparation arising from procedural challenges and expenses of issues beyond the core misconduct defence”. This entry is undated. There were no submissions from Ms Barnett as to what it related to. It was not possible to distinguish what if any fees arose after 29 October and so, bearing in mind the wording of Ridehalgh on this aspect of the test, the Tribunal could not determine that any of this 1.5 hours work were caused by Mr Duffy’s conduct.[50]The total amount of wasted costs which were incurred by Mr Duffy’s conduct comes to £4,560 and this relates solely to Counsel’s fees from 30 October 2024 onward. Is it just to order Mr Duffy to pay some or all of the wasted costs?[51]It does not automatically follow that if wasted costs were incurred, the representative must pay them. The Tribunal has discretion in this regard.[52]The Tribunal considered that expenses are the exception rather than the rule and are not punitive. Rather they should compensate for costs or expenses which were wasted.[53]In considering ability to pay, Mr Duffy submitted that he is in receipt of universal credit amounting to £760 per month and provided a screenshot of the February 2026 payment. He did not provide any other documentation such as bank statements, copies of his bills or other outgoings. He was directed by the Tribunal in advance of the hearing to produce ability to pay documentation and provided with examples of what this might include.[54]He submitted that he is required to pay child maintenance of £400 per month. £300 goes to miscellaneous bills including phone, wifi and servicing debt. He was not willing to confirm the level of debt save as to confirm it is in excess of £5,000. This leaves £60 things like toiletries. Rent is paid by his partner. Mr Duffy spends part of the year living in Cyprus and flights to and from the UK are paid by his partner and/or his parents. He has been certified as unfit for work since October 2025. He did not provide any documentation confirming these details.[55]We considered that from the outset of this case, the respondent maintained the position that this case was an abuse of process and that Mr Duffy in particular had an ‘ulterior motive to cause trouble, inconvenience and unwarranted expenses’ for the respondents. Expenses warnings, specifically wasted costs warnings against Mr Duffy, were made as early as April 2024 (the claim being lodged in March 2024) on the basis that “the respondent has unequivocal evidence that the claim as made by you was fundamentally based on a lie and presented on your behalf by your representative.” The warnings of the respondent were not generic boilerplate expenses warnings. They were specifically drafted to reflect the circumstances of the case and referred to factors which were considered as part of this hearing.[56]The Tribunal considered that Mr Duffy has presented himself as a lay representative with two to three years’ experience in employment law and tribunal advocacy at the time of lodging the claim. He is knowledgeable about employment law and tribunal practices. His written applications throughout this case regularly referenced relevant case law, legislation or the ET Rules. While is may be, and Mr Duffy confirmed this during the hearing, that AI assists him from time to time, Mr Duffy demonstrated a good understanding of employment law and practice when making oral applications. He is not akin to a spouse or family member seeking to assist an unrepresented claimant. That is not to say that he is at the same level as a legal representative and at no point has the Tribunal viewed him in that vein or held him to that standard. He made his own application for wasted costs and a PTO during this process. He therefore had a good understanding that if the position as set out in the respondent’s warnings turned out to be true, there was a real risk he could be liable for some or all of their legal expenses.[57]Taking all of this into account, the Tribunal decided to exercise their discretion in favour of a wasted costs order for the respondent for the total amount of wasted costs incurred namely £4,560. Mr Duffy understood the risk given the early expenses warnings by the respondent and continued to act in the case after the point where it was an abuse of process. While the limited information about his ability to pay was considered, it did not dissuade the Tribunal from exercising their discretion in favour of an order for the total amount of wasted costs.