Mr M Bentley v No Ordinary Designer Label Ltd T/a Ted Baker: 4107374/2020
JUDGMENT
The judgment of the Tribunal is that the Claimant was unfairly dismissed and the Respondent is ordered to pay the Claimant the sum of £50,859 by way of compensation. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to this award. The prescribed element is £33,125 and relates to the period from 1 November 2020 to 25 March 2021. The monetary award exceeds the prescribed element by £17,734.REASONS
Introduction
Introduction
[1]The Claimant was employed by the Respondent as Head of European Retail. He had his office base in Glasgow.[2]The Claim is one of unfair dismissal. The Claimant was dismissed with effect from 30 July 2020. He was paid in lieu of 3 months’ notice. In his ETI, the Claimant accepted that he had been dismissed by reason of redundancy, that being a potentially fair reason for dismissal in accordance with section 98(4) of the Employment Rights Act 1996 (“ERA”).[3]The Respondent has not defended the claim, and has not, accordingly advanced any reason for the dismissal. At the outset of the Hearing, however, the Claimant’s solicitor repeated the concession that a redundancy situation existed and that that state of affairs was the reason for the Claimant’s dismissal. The fairness of the dismissal was, however, challenged on a number of grounds set out in the ET1. In giving evidence, the Claimant focussed on what he saw as failures in the consultation process and failures in relation to the treatment of suitable alternative employment.[4]In the absence of any evidence to challenge the Claimant’s account, the Tribunal found the dismissal to have been unfair.[5]The Tribunal then went on to consider the question of compensation. Basic Award[6]The Claimant having conceded that the dismissal was by reason of redundancy, the exclusion from entitlement to a basic award in section 122(4) of ERA applies. The Claimant accepted that he had received the correct statutory redundancy payment. He did not, accordingly, claim a basic award. Compensatory Award[7]Since his dismissal, the Claimant has not received any employment income. He received Jobseeker’s Allowance for 6 months amounting to £1,933.10. He is undertaking unpaid consultancy work for a start-up business. He described the retail sector as being very challenging in terms of opportunities – particularly at his level and location. He has not been successful in any application he has made.[8]The Claimant elected not to apply for an alternative position with the Respondent. On being questioned by the Tribunal about this, he stated that he no longer had trust in the Respondent to manage the process fairly. The role ultimately went to an external candidate in preference to a colleague of the Claimant who did apply.[9]The Claimant’s solicitor produced a schedule of loss. From that, the Claimant’s weekly net salary and benefits amounted to £1,601.23. The schedule deducted Jobseeker’s Allowance, but this was added back by the Tribunal on the basis that it will be recovered under the Recoupment Regulations. The Claimant’s losses from 1 November (the prior three months being covered by the payment in lieu of notice) to the date of hearing are £33,125. The Tribunal was satisfied that those losses should be awarded in full.[10]The Tribunal went on to consider whether to award future loss. The Claimant sought an overall compensatory period of 12 months. Having regard to the evidence of the Claimant, the forecasts for economic improvement in the short term and the Claimant’s ongoing duty to mitigate his losses, the Tribunal awarded a further 10 weeks’ loss, amounting to £16,102.[11]The total compensatory award on a net basis is accordingly £49,227.[12]The portion above £30,000 requires to be grossed up in accordance with section 401 of the Income Tax (Earnings and Pensions) Act 2003. The Claimant did not address the question of grossing up. Based on the information before the Tribunal, and on the basis that the Claimant has had no income in the current tax year, using the Scotland tax rates for the tax year 2021/2022, the relevant calculation is as follows: Tax Band Rate Calculation Gross Difference Less than 0% - - - £12,571 £12,571 - 19% £2,096 ÷ 0.81 £2,588 £492 £14,667 £14,668 - 20% £4,559 ÷ 0.8 £5,699 £1,140 £19,227[13]The total payment required in order to gross up the award is accordingly £1,632; the total compensatory award is £50,859.[14]The Respondent is also liable to pay Employer National Insurance contributions in respect of the award in excess of £30,000.[15]The Claimant having received Jobseeker’s Allowance, the Recoupment Regulations apply to the compensatory award. The prescribed element is £33,125 and relates to the period from 1 November 2020 to 25 March 2021. The monetary award exceeds the prescribed element by £17,734 and this sum is payable immediately. The Respondent should await confirmation of the balance to be paid to the Claimant in accordance with the Recoupment Regulations.Introduction
[1]This case previously came before the Employment Tribunal in circumstances where the Respondent had not defended the claim and did not participate in the hearing. The Tribunal upheld the Claimant’s claim for unfair dismissal and made an award of compensation.[2]The Judgment was sent to the Claimant and copied to the Respondent on 29 April 2021. By email of 11 May 2021, solicitors acting for the Respondent made a reconsideration application under Rules 70 and 71 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the ET Rules”). The essence of the application was that the Respondent had not seen any papers relating to the claim until it received the Judgment on 6 May 2021.[3]The application was opposed by the Claimant. A number of other exchanges of correspondence took place, inter alia seeking confirmation as to whether the parties believed the application could be determined without a hearing.[4]It was determined that the application should be considered at a hearing.[5]In the course of the exchanges of correspondence, the Respondent requested a copy of the ET1. It was provided to the Respondent’s solicitors by letter of 9 June 2021 for information pending a decision on the reconsideration application.[6]By email dated 18 June 2021, the Respondent submitted an ET3. If successful in its application for reconsideration, the Respondent invited the Tribunal to revoke the earlier judgment and allow the Respondent a retrospective extension of time to have the ET3 accepted pursuant to Rule 20 of the ET Rules.[7]The Tribunal heard evidence from the Respondent’s Group Head of HR Operations, Ms Donna Davis. She produced a witness statement which was taken as her evidence in chief. In summary, she repeated the proposition that no correspondence relating to the claim was received until receipt of the Judgment. Ms Davis was aware of the potential of a claim as a result of there having been participation in the ACAS Early Conciliation process. The Claimant and Ms Davis engaged by email in the course of that process.[8]She described the effect of the COVID pandemic on the Respondent’s business and the closure of its head office in London (the address used for the purposes of the claim). Initially, there was no one in the building other than security guards who were tasked with opening post and scanning it to certain individuals within the organisation.[9]In December 2020, Ms Davis was made aware by ACAS of two claims against the Respondent for which it had not received any notice of claim or other documentation. These were unrelated to the present claim.[10]Later that month, Ms Davis asked the security personnel to ensure that any correspondence from Employment Tribunals be scanned and passed to her.[11]Around that time, Ms Davis was made aware by her solicitors of the option of registering with Employment Tribunals to have claims copied to a designated email address. That option was set out in an FAQ document prepared by the Presidents of the Employment Tribunals in Scotland and England answering questions arising from the impact of the COVID pandemic on Employment Tribunals (“the FAQ Document”). She submitted such a request to the London Central Employment Tribunal on 22 December 2020. She did not submit such a request for any other Tribunal.[12]Ms Davis stated in her witness statement that because of the Claimant’s superiority, he was affiliated to the Respondent’s Head Office and that she considered that her notification to the London Central Employment Tribunal would have covered his claim. On being questioned further on this point, however, Ms Davis accepted that she did not consider the position of the Claimant at all in limiting her notification to that Tribunal. Submissions & Deliberations[13]For the Respondent, Mr Bhatt set out a helpful summary of the law as it relates to the present applications. It was not contested by Mr Mayberry and is considered by the Tribunal to be a fair assessment. For completeness, it is set out below:[14]A Tribunal may reconsider any judgment where “it is necessary in the interests of justice to do so”: Rule 70 ET Rules 2013.[15]Under the previous version of the ET Rules (ET Rules 2004) there were five grounds upon which a Tribunal could review a judgment. Two are relevant to this case:a. That a party did not receive notice of the proceedings leading to the decision;b. That the decision was made in the absence of a party.[16]In Outasight VB Ltd v Brown [2015] ICR D11 EAT, HHJ Eady QC held that the specific grounds are now subsumed within the “interest of justice” test. In this case, HHJ Eady held that the “interest of justice” test provides Tribunals with a broad discretion but that decision must be exercised judicially “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and the public interest requirement that there should, so far as possible, be finality of litigation”.[17]A Tribunal dealing with a reconsideration application must seek to give effect to the overriding objective of dealing with cases “fairly and justly” which includes:a. Ensuring that the parties are on equal footing;b. Dealing with cases in ways which are proportionate to the complexity and importance of the issues;c. voiding unnecessary formality and seeking flexibility in proceedings;d. Avoiding delay, so far as compatible with proper consideration of the issues; ande. Saving expense. Rule 2 ET Rules.[18]In Williams v Ferrosan Ltd [2004] IRLR 607, the EAT held that in light of the introduction of the overriding objective the “interest of justice” ground should not be read “as if inserted into it are the words “exceptional circumstances” – there is therefore no “exceptionality hurdle”.[19]The interests of justice must be exercised consistently with the right to a fair trial under Article 6(1) European Convention of Human Rights (“ECHR”). Reference to Article 6 in the context of a reconsideration application were made in City and County of Swansea v Honey EAT 0030/08, albeit in the context of allegations of bias.[20]On the secondary application of an extension under Rule 20 of the ET Rules, Mr Bhatt submitted that the exercise was a very similar one and referred to the case decided under the previous Employment Tribunal Rules of Kwik Save Stores Ltd v Swain [1997] ICR 49. In that case, the EAT held that the Tribunal should always consider the following factors: a The employer’s explanation as to why an extension of time is required – the more serious delay the more important it is for the employer to provide a satisfactory explanation; b The balance of prejudice; and c Other merits of the defence.[21]Against that legal framework, Mr Bhatt submitted that the situation prevailing at the time of the COVID pandemic and the lockdown affecting businesses such as the Respondent meant that there were cogent reasons behind the Respondent’s non-participation in the claim. He invited the Tribunal to find that the Respondent satisfied the burden that it did not receive the ET1. He pointed to the systems which were in place and described them as being proportionate.[22]Considering the interests of justice and the balance of prejudice, Mr Bhatt submitted that the Respondent had acted expeditiously as soon as it became aware of the claim including filing the ET3 in circumstances where it had not been ordered to do so. He went on to submit that the Respondent has a good defence to the claim and even if the Respondent loses on liability, there are proper arguments which may be made to address reductions in the level of compensation.[23]Mr Bhatt sought to present the Claimant’s approach in the case as “opportunistic game playing”. The issues of criticism appeared to centre around the Claimant having failed to copy the Respondent into a piece of correspondence with the Employment Tribunal as well as its failure to follow the suggestion in Question 21 of the FAQ Document that claimants may provide an email address if they are concerned that their claim will not be received at a closed office.[24]On behalf of the Claimant, Mr Mayberry submitted that it was not necessary in the interests of justice for the reconsideration application to be allowed. He pointed to what he saw as the exceptional lack of likelihood that the only document received was the Judgment in circumstances where other correspondence relating to the claim had been sent to the correct address. He did not suggest any wilful disregard for correspondence but pointed to the inadequacy of the internal processes put in place by the Respondent – a large employer.[25]He also submitted that the Respondent had failed to act appropriately on being made aware of the Judgment and in particular had failed to comply with Rule 20 in providing the ET3 at the earliest possible opportunity. Although he accepted that the Respondent did not have the ET1, it did have a Judgment and was permitted under the FAQ Document to submit at least a skeletal defence.[26]Focussing again on the Respondent’s internal failures, he pointed to the Respondent’s awareness of a likely claim, there having been extensive discussions with ACAS during the Early Conciliation period. It was a matter of agreement that no resolution had been reached. He also highlighted the failure to follow the suggested approach in the FAQ Document as it related to providing email details to each Tribunal region where claims might arise.[27]He highlighted the benefit in the finality of litigation and the six months which have passed since the decision. He advised that the Claimant remained out of work and had been adversely affected by press coverage of his claim.[28]In response to the suggestion of opportunistic game playing, Mr Mayberry strongly rejected the suggestion of any such behaviour. He highlighted the limited basis on which a respondent who does not enter appearance may participate in proceedings without the express approval of the Employment Judge.[29]Having regard to the evidence before it, the Tribunal was satisfied that the Respondent met the burden of proof that it did not receive the ET1 at the relevant time. Whilst certain steps were taken by the Respondent to seek to ensure that correspondence was properly dealt with, their internal processes were deficient. The Tribunal had some sympathy with the Claimant’s position that a company of the scale of the Respondent ought to have done more, but it also had regard to the considerable disruption caused by the COVID pandemic at that time, particularly as offices were closed, and concluded that the Respondent’s actions had been proportionate.[30]Although much time was spent debating the relative non-compliance by both parties with the guidance in the FAQ Document, the Tribunal was mindful that the guidance had no statutory effect and parties had choices as to whether to avail themselves of the options set out there. Both parties could, conceivably, have done more to ensure that the current situation did not arise, but there was no obligation to do so.[31]The Tribunal was not satisfied that there was any “opportunistic game playing” on the part of the Claimant. A failure to copy the Respondent (who had not entered appearance) into a response to a request for information from the Tribunal was not opportunistic; nor is there any evidence that it would have made any difference given the Respondent’s failure to receive other pieces of correspondence.[32]Having not received the ET1 and the decision having been made in the absence of the Respondent, there was clear prejudice in that Respondent was not able to put forward its defence to the claim, both in terms of the merits and compensation. Whilst any future hearing will inevitably be considered on the basis of the evidence heard, the ET3 lodged does present arguments on liability and remedy which if successful, may well affect the outcome. It is quite possible, however, having regard to the fact that the Claimant remains out of work that, if successful, he could achieve a higher award than that awarded initially. Whilst mindful of the benefit of the finality of litigation, in this case, with a view to ensuring that the issues can be addressed with the parties being on an equal footing in a case where the financial value is relatively high, the Tribunal allows the Respondent’s application for consideration.[33]Having regard to the secondary application, the Tribunal was satisfied that the Respondent acted swiftly upon becoming aware of the Judgment. The Claimant’s criticism that no ET3 was submitted at the time of the reconsideration application is unwarranted in circumstances where the Respondent did not have a copy of the ET1 and was not provided with a copy until some time later. Thereafter, despite not having been ordered to do so, the Respondent submitted a full ET3 within a short period of time of receipt of the ET1. The balance or prejudice and the wider consideration of the merits of the defence mean that the application under Rule 20 is granted.[34]The case will be listed for a fresh hearing using CVP. Two days will be allocated. Parties are asked to liaise in the exchange of documents and the preparation of a joint bundle for use at the hearing. Witness statements will not be permitted.[1]the respondent’s claim for expenses in the sum of £20,000 succeeds,[2]payment shall be made within 21 days of this judgment having been sent to the parties unless otherwise agreed between the parties.[1]This case was heard over five days between 1 and 5 August 2022. Day one was a reading day. Submissions were heard on day five and I reserved my judgment. Judgment was in favour of the respondent after which the respondent made an application for expenses.[2]That application was heard today and was dealt with by way of written and oral submissions. I was provided with a bundle of relevant documents. The claimant did not provide any documentary evidence of means and he declined to give oral evidence as was his right.[3]I am grateful to both representatives for their thoughtful submissions.[4]I delivered an oral judgment and Mr Bhatt asked for written reasons which I set out below. Issue[5]The issue was whether to award expenses against the claimant under Rule 76(1)(a) and/or (b) of the Employment Tribunal Rules 2013 (the Rules).Relevant Law
[6]Rule 76(1)(a) and (b) of the Rules, states as follows: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that:- (a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or party) or the way that the proceedings (or part) have been conducted. (b) any claim or response had no reasonable prospect of success.[7]The parties agreed that Tribunals are required to take a two-stage approach when considering whether to make an expenses order:a. first, consider whether the paying party’s conduct falls within one of the grounds set out in Rule 76(1) of the Rules,b. second, if so, ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party.[8]The following principles emerge from the key cases.[9]First, in general, expenses are compensatory and any expenses order ought to be limited to expenses that were “reasonably and necessarily incurred” in the case.[10]In Rule 76(1(a), “unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to vexatious: (Dyer v Secretary of State for Employment EAT 183/83).[11]When exercising its discretion, the Tribunal should look at the whole picture of what happened in the case and ask itself whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The Tribunal is not required to determine whether there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed: (Yerrakalva above).[12]In relation to Rule 76(1)(b) the approach to an application for expenses in which the receiving party claims that the paying party brought and/or continued claims which had no reasonable prospects of success a 3-stage process should be adopted as follows:a. did the complaints in fact have no reasonable prospects of success?b. if so, did the complainant in fact know or appreciate that?c. if not, ought they, reasonably, to have known or appreciated that? (see Radia v Jefferies International Ltd EAT 0007/18) 7. The EAT went on to state in Radia that the question as to whether the claim had no reasonable prospects of success is judged based on information that was known or reasonably available at the start and considering how at that point the prospects of success would have looked. Where a party is legally represented, in the absence of evidence to the contrary, the Tribunal will assume that the represented party had been properly advised as to the risks and weaknesses of his case and the potential for an adverse costs order: (Brooks v Nottingham University NHSFT EAT 0246/18). Submissions of the parties[13]There is no need for me to repeat the detailed written and oral submissions of the parties here. In brief, the respondent says that based on the findings and conclusions in my judgment, it ought to have been clear to the claimant that, having received competent legal advice, his claim had no reasonable prospect of success from the outset and that his commencement of the proceedings was unreasonable.[14]That submission was founded upon three key criticisms of the claimant and/or his case as follows:a. the claimant was not a credible witness and was evasive,b. the claimant’s case was built on ‘shifting sands’ – he raised new matters which were not pleaded,c. the claimant withdrew a number of allegations in his oral evidence.[15]For the claimant, Mr Briggs submitted that:a. the claimant was not found to be dishonest,b. concessions during cross-examination are, on occasion, appropriate,c. the ‘conspiracy’ allegation was implicit in the way the claim was pleaded,d. the fact that the claim failed is not evidence that it was unreasonably brought nor that it had no reasonable prospects of success,e. the claimant believed his claim to have reasonable prospects,f. the respondent failed to seek strike out or a deposit order implying that they did not consider that the claim had no reasonable prospects of success.[16]As I am required to do, I have considered the claimant’s claim as it was presented in the paper apart to the ET1.[17]The first allegation in the paper apart, and which was discussed at length at the hearing, is that the respondent sought to run two consultation processes together being a consultation in respect of a bonus scheme to which the claimant had access and the redundancy process. There was a criticism of the respondent that the bonus consultation had not been concluded and this in some way meant that the claimant had no confidence in the redundancy process.[18]At the time the claim was presented, indeed at the time the redundancy consultation commenced in this case, the claimant had received the full amount of the bonus which was the subject of the first consultation. That consultation had nothing whatsoever to do with the subsequent redundancies which had everything to do with the financial situation in which the respondent found itself for reasons which I do not need to reiterate in this decision.[19]The second allegation in the paper apart is that collective consultation was not minuted “to the claimant’s knowledge” and he received no minutes after collective consultation meetings. Those meetings were minuted and the minutes were placed on the respondent’s landing page where it deposited significant amounts of information about the ongoing redundancy/restructuring process. In any event even if those meetings were not properly minuted, that would not render an individual redundancy dismissal unfair. The fact is that the claimant had access to the landing page throughout the entire period of the redundancy process and he knew or ought reasonably to have known that the collective consultation meetings did have minutes and that he had access to them.[20]The third allegation in the paper apart is that the respondent did not handle the consultation efficiently. It is not an allegation that consultation was not sufficient or reasonable. The fact is that at the date the claim was presented, the claimant was aware that he had received information from Mr. Clark about the restructure plans, he knew what the new organisation was to look like structurally, he was made particularly aware of details of the new position of Retail Director, and he received a detailed job description for that role. Consultation was to take place across two formal consultation meetings and the minutes of the first consultation meeting show that there was reasonable consultation with the claimant. For reasons which I will set out below the second and final consultation meeting is less relevant to the question of fairness.[21]The fourth allegation is that because consultation was “insufficient” the claimant was not notified of potentially suitable alternative roles which he would have applied for. The paper apart says that these included a Deputy Head of Retail role and International Sales Manager.[22]However, at the date the claimant presented his claim he knew that he had been told about the Deputy Head of Retail role because he had expressly turned it down on the basis that it was “too junior”. There was an e-mail to that effect in the bundle. As to the position of International Sales Manager, the paper apart states that “this role was a new title for the Deputy Head of European Retail role”. At the time that the claim was presented the claimant knew that this role was not new and was not vacant, and therefore could not possibly be suitable alternative employment.[23]The fifth allegation, in contradiction to the fourth allegation is that although the claimant had the option to apply for the role of Retail Director, he had to wait three weeks before receiving a job description and was then given two days to apply for the role. This was not correct. The contemporaneous documents show quite clearly that the claimant had a job description for the role weeks before he decided not to apply for it and given that there was no date set for interviews for the new role it is difficult to see how he concludes that he was only given two days to apply for it. It is presumed that the reference to only being given “two days” once he received the job description is a reference to the second version of the job description, but the fact remains that the role of Retail Director as described to the claimant by Mr Clark never changed even though the structure and some of the wording in the first and second job descriptions were different. In the event it is quite clear in contemporaneous emails from the claimant that his reason for not applying for the role was that it did not meet his career aspirations and had nothing to do with the date that any particular job description was sent to him or how long he had it. Clearly this was known to the claimant at the date he presented his claim.[24]The sixth allegation also relates to the Retail Director position. the claimant says he was unclear what the job entailed because of the two different job descriptions but as I have set out above, that was clearly not correct. Mr Clark had made it clear that in effect the role was to be head of the retail division and to implement the respondent’s retail strategy whatever that was. The claimant had been told that there were no plans to close outlets and no plans to open new ones. He was aware of international developments because he had seen what the changes were to the International Sales Manager role and he had been in the business for around 26 years at this point and therefore to suggest that he did not apply because he lacked some detail simply does not accord with all of the contemporaneous evidence most importantly his own e-mail which says not that he was not going to apply for the role because he was unclear about what it required, but rather because the role did not meet his career aspirations. Again, all of these matters were known to the claimant at the point he presented the claim.[25]The seventh allegation is that the second consultation meeting with Mr. Clark which was essentially to confirm the claimant’s redundancy meant that, as he puts it in the paper apart, he was left “in no doubt that redundancy was a formality, and that the respondent did not intend to consider any other alternatives”. That of course is entirely correct. However, the way the matter is expressed in the paper apart is a suggestion that the second and final consultation meeting was not proper consultation, and by implication not reasonable or fair, because dismissal was inevitable. The reason dismissal was inevitable was because prior to the second consultation meeting the claimant stated that he was going to leave the respondent, he says so in an e-mail in those terms. In effect what had happened was that in and around the first consultation meeting the claimant had considered the two potential roles that were available to him and had declined the first for the reasons set out above and the second, the deputy position because it was too junior. Given those factors, the claimant was clear that he was going to leave and that meant that the second consultation meeting was left with nothing to discuss in terms of redundancy consultation, and it is hardly a criticism of the respondent that they did not do something which was not available for them to do. In other words, the criticism of the respondent that the invitation letter to the second consultation meeting meant that it “did not intend to consider any other alternatives” is at best disingenuous. The reason the respondent did not intend to consider any other alternatives to redundancy is it the claimant had made it clear that he did not want to stay. That is not a basis to make a finding of unfair dismissal.[26]The final matter dealt with in the paper apart is the so-called appeal hearing. For reasons which I have dealt with in detail in my judgment, this was not an appeal hearing. The claimant made it perfectly clear when he “appealed” that he was not appealing to get his job back and therefore not appealing against his dismissal, he was merely complaining about some aspects of the process. Notwithstanding that, there was an appeal hearing held by the chief executive officer, Ms Osborne. She said that she would listen to what the claimant had to say, ask any questions she might have by way of clarification and then adjourn to investigate his complaints and then respond to him in writing, which is exactly what she did. The only issue the claimant had was to suggest that the notes of the appeal hearing which were produced by the respondent were not full and thus not ‘correct’. They were of course notes and not intended to be verbatim but in any event the respondent accepted some of the changes which the claimant made to the notes, but in terms of an unfair dismissal claim, nothing can possibly turn on what took place at that hearing and subsequently because, as I have set out above, the claimant did not wish to appeal against his dismissal and so there was no appeal. I should add for the sake of completeness that, even if the claimant had appealed, the appeal hearing, and outcome were reasonable.[27]All of the matters above are very well documented and were well within the scope of the claimant's knowledge at the date he left the respondent’s employment and certainly before he presented his claim. This became entirely clear during both his examination in chief and cross examination. I should just deal with one or two other matters.[29]There was much discussion about the so-called conspiracy theory which emerged during the claimant’s examination in chief and which took up a significant period of cross examination of the respondent’s witnesses. There was literally no evidence of any conspiracy to get rid of the claimant. The fact is that the claimant was offered the opportunity to stay within the business, but he declined for the reasons I have set out above. The claimant alleged that his relationship with Mr. Clark had soured over the bonus consultation but there is no documentary evidence of that, and it is perfectly plain from the documentation that Mr Clark was very keen to try to obtain for the claimant and indeed Mr Tennant, who were both very long serving employees, an enhanced redundancy package but he was told in no uncertain terms that that was not available. This suggests to me that there was no breakdown in the relationship between the claimant and Mr. Clark.[30]Returning to Mr Briggs’ submissions, nothing turns on the fact that the respondent did not apply for a strike out of the claim or for a deposit order. I have to look at the claimant’s behaviour and specifically what he knew at the time he presented the claim. It is not a criticism of the application for expenses that the respondent might have saved expenses by having the claim struck out sooner. This amounts to no more than saying that the respondent should have speculatively spent further money making an application which may not have succeeded.[31]Finally, there was a good deal of discussion both at the final hearing and today about the recording of the appeal hearing which the claimant covertly made. The criticism of the claimant is that instead of wasting time, and therefore expenses, criticising and cross examining the respondent about various versions of the minutes of that hearing, the matter could easily have been resolved if he had disclosed his recording and the parties may have agreed that there either there was, or was not a particular issue to put before me in relation to that. I note that the respondent asked the claimant whether he made a recording and received no response. Mr Briggs says that the respondent could have sought an order for disclosure but that begs the question why would a respondent expend legal fees making an application for something which they did not know existed? That could simply have been a waste of money. On the other hand, it is up to the claimant what he chose to disclose. There is a valid criticism of the claimant that expenses may have been saved had the matter of the disputed appeal hearing minutes been resolved prior to the final hearing but in my judgment, for the reasons I have set out above, in relation to the fairness of the dismissal, nothing turned on what was or was not in those minutes and the more valid criticism of the claimant is the time wasted discussing that hearing given that it was not in any meaningful sense an appeal and therefore not in fact part of the redundancy process. Given the legal advisors involved in this case I presume that the claimant received such advice but nevertheless chose to continue discussing what took place at the appeal and afterwards as a matter of dispute when in fact it was entirely irrelevant.[32]For those reasons I find that the claim had no reasonable prospect of success at the outset and that therefore the claimant has behaved unreasonably and Rules 76(1)(a) and (b) are made out.[33]In relation to whether I should exercise my discretion I am in no doubt that I should. There was not a single matter put to the respondent, as giving rise to unfairness, which was a justifiable criticism of the redundancy process it adopted. All of the allegations of unfairness dealt with matters which were within the knowledge of the claimant, were by and large well documented, and about which he took legal advice, but he nevertheless presented and prosecuted the claim for unfair dismissal as set out in the paper apart which on any reasonable analysis had no reasonable prospect of success. This caused the respondent to incur legal fees of just under £70,000, it tied up the CEO for a week in the hearing and no doubt diverted a significant amount of management time in preparation for that hearing.[34]The claimant had advice form reputable lawyers and I assume he was properly advised of the risk of pursuing a claim such as that presented before me at the final hearing.[35]In terms of quantum, given that the application is limited to £20,000 which is less than one-third of the expenses incurred, and, in the circumstances, the quantum sought seems to me to be entirely reasonable.