Mr M Tresair v The Governing Body of Kings’ School and Hampshire County Council: 6000626/2024

EMPLOYMENT TRIBUNALS

Case No 6000626/2024

Between

Mr M TresairClaimant

The Governing Body of Kings’ School and Hampshire County CouncilRespondent

Before

Employment Judge Bradford

In person for claimant

Miss N Gyane (instructed by counsel) for respondent

Date 5 December 2025

JUDGMENT

[1]The claims in so far as they are brought against the Second Respondent are dismissed as the complaints relate to Unfair Dismissal and Automatically Unfair Dismissal. These complaints can be brought against the First Respondent pursuant to the Education (Modification of Enactments Relating to Employment) (England) Order 2003.

[2]The Claimant’s complaints of Automatically Unfair Dismissal and Unfair Dismissal brought against the First Respondent under Part X Employment Rights Act 1996 are not well-founded and are dismissed.

REASONS

[1]At the conclusion of the hearing on 5 December 2025, after I had dismissed all the Claimant’s claims, the Respondent made an application for costs, comprising counsel’s fees plus VAT (£9,500) and photocopying costs (£382.50). This could not be dealt with on the day as the Claimant said he was unable to stay as his mother was unwell, indeed, he said she was at the end of her life. This had not been mentioned at any stage during the previous four days of the hearing, when the Claimant had been required to cross-examine various witnesses. Nor had he referenced it on the occasions he had arrived late. He had at no time stated he would be unavailable on the Friday afternoon. He provided no medical evidence.

[2]However, as the Claimant would not stay so the matter could be dealt with, I directed that the Claimant respond to the costs application by 19 December 2025. My Order in this respect was sent to the parties on 10 December 2025. I ordered that the Claimant provide evidence of his means to pay, along with a short statement setting out the impact of his ADHD, dyslexia and autism spectrum traits on his ability to conduct his case, including to meet deadlines. I invited him to provide medical evidence should he so wish.

[3]The Respondent was to make any further representations, in response to the Claimant’s submissions and evidence, by 30 December 2025.

[4]On 30 December 2025, the Respondent emailed the Tribunal. It stated that the Claimant had failed to comply with my Order, and nothing had been received.

[5]In response to matters I had raised, the Respondent stated that it understood the Claimant had received half the equity in a house following a divorce. It averred this should be taken into account in respect of his ability to pay.

[6]With regard to the Claimant’s ability to conduct litigation in view of his conditions referenced above, the Respondent gave the dates on which the Claimant had confirmed to the Tribunal that he was fit to conduct litigation, comply with case management orders and draft a witness statement. It noted that the Claimant had sent the Respondent’s representative lengthy correspondence at times when he had failed to comply with directions orders. It submitted that his ADHD, dyslexia and autism spectrum traits had no significant impact on his ability to conduct his case. Application

[7]The Respondent’s application was made in accordance with rule 74(2)(a) and (b) of the Employment Tribunal Procedure Rules 2024 (‘the Rules’) which states: (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success

[8]In relation to (a), the Respondent submitted that the Claimant had acted unreasonably in the bringing of proceedings from the outset. Miss Gyane referred to the Claimant’s response to my question when he made closing submissions. I asked the Claimant what it was he said the Respondent should have done with a view to supporting him to return to work. He referenced that he had made an offer to the Respondent, at an early stage of his sickness absence, namely that they pay him one year’s salary, and if that was not agreed he would bring an ET claim. The Respondent submitted therefore that his claims were not brought on a legitimate basis, but to be abusive and unreasonable.

[9]The Respondent further submitted that the Claimant had acted unreasonably in his conduct of the proceedings. He failed to provide disclosure, as ordered, by 29 August 2025. Then on 24 October 2024 he provided 764 pages of documents. That required an application to extend the bundle size to over 1,000 pages. This meant that the counsel originally instructed no longer had capacity to conduct the matter, and alternative counsel had to be instructed at an additional £1,000 plus VAT. The Respondent’s case was that had the Claimant not pursued an unreasonable claim, no counsel’s costs would have been incurred. The Claimant’s unreasonable conduct of the litigation incurred and additional £1,200.

[10]As to the application under (b), that the claim had no reasonable prospect of success, the Respondent relied on my finding that none of his asserted protected disclosures were such, in each case because the Claimant did not have a genuine belief that the public interest was engaged, nor did he hold genuine beliefs as to wrongdoing of any prescribed nature. Indeed, I had found that his asserted protected disclosure, which he claimed tended to show that Mrs Hutton had committed a criminal offence, arose from a personal grudge.

[11]As to my discretion as to whether to award costs, the Respondent referred me to further witness statements from Dr Adams and Mrs Hutton, as to the impact of the Claimant’s decision to pursue his claims. Mrs Hutton referenced the significant stress she had experienced over several months when the Claimant alleged she had committed a criminal offence. His ongoing hostility made her question whether it was safe for her to go to work. Dr Adams described the impact on the school in dealing with the claim in terms of management time. Importantly, he described the impact of the costs being sought on the school’s budget, and the consequent detriment to pupils if the school had to bear these costs.

[12]Applying the authorities, first I need to decide whether the Claimant acted unreasonably in bringing or conducting his claim, or brought a claim with no reasonable prospects of success. If so, and there are grounds for an order, I then need to exercise my discretion to decide whether, in all the circumstances, an order should be made.

[13]I have had regard to McPherson v BNP Paribas

[2004] ICR 1398

, CA, per Mummery LJ, who said the ET must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring the respondent to prove that specific unreasonable conduct by the applicant caused particular costs to be incurred. This, he clarified in Barnsley Metropolitan Council v Yerrakalva

[2012] ICR 420

, saying that the ET should consider the whole picture of what had happened in the case and ask whether there had been unreasonable conduct by the claimant in bringing and conducting the case and, in so doing, identify the conduct, what was unreasonable about it and the effects it had had. The costs need not be precisely calculated, but should broadly reflect what had been caused by the erring party.

[14]As to the Claimant’s assessment of prospects of success, as a litigant in person, it was confirmed in Madu v Loughborough College

2025 EAT 52

that the question of prospects of success is wholly objective. However, lack of representation may be relevant to whether a claimant acted unreasonably in pursuing a complaint. It will generally be relevant to the question of discretion. The question is whether, prior to the hearing, the Claimant ought to have appreciated the claim had no reasonable prospects, on the information available.

[15]Whether the Claimant acted unreasonably in bringing proceedings is closely aligned with whether he was or should have been aware that his claim had no reasonable prospect of success. My starting point is that when acting in person, there is likely to be some lack of objectivity, because matters are inherently personal, and there is often much at stake. Further, the judgment must not be made with the benefit of hindsight, his claims having failed, as noted in Madu above. In relation to the protected disclosure claims, I found that he did not genuinely believe the public interest was engaged, nor that relevant wrongdoing was shown. I acknowledge that the legal test has a number of sub-parts, and may not be straightforward for a lay person. Equally, the Claimant is an educated person, and so I find his lack of belief that the public interest was engaged means that he was or should have been aware that these complaints lacked any reasonable prospect of success. Indeed, he was seemingly more concerned with the content or subject of the complaints he said were protected disclosures, rather than the idea that matters had been raised because they tended to show wrongdoing. I find that he acted unreasonably in bringing his public interest disclosure complaints because he knew the public interest was not engaged and they were all his personal concerns.

[16]Had this aspect of his claim not been brought, the hearing would have been significantly shorter, and overall costs reduced accordingly.

[17]As to the unfair dismissal claim, whilst for obvious reasons I stayed clear of anything to do with pre-termination negotiations, it was apparent that discussions had taken place from a relatively early stage in the Claimant’s sickness absence. I found that the Claimant sought to frustrate the school’s internal processes by his refusal to engage with either an investigation into his grievance, or the absence management process. The question is whether he knew, or should have known, in view of that conduct, that an unfair dismissal claim had no reasonable prospects of success, or whether he acted unreasonably in pursuing it. Whilst generally, deliberate frustration of the internal processes, should alert a person that an ET would take a dim view of their conduct, I cannot ignore the Claimant’s underlying neuro-diverse conditions. Evidence from the Claimant would have assisted me to understand the impact of his conditions on his ability to see alternative perspectives. It is generally accepted that the nature of autism spectrum disorders includes difficulty in viewing things from another perspective and hence make objective assessments. I am not satisfied that the Claimant was or should have been aware his unfair dismissal claim had no reasonable prospects of success or that he acted unreasonably in bringing it. It is not unusual for unsuccessful pre-termination negotiations to be followed by a claim. As to whether the Claimant acted unreasonably by continuing to pursue this part of his claim after witness statements had been exchanged, given that this was the working day before the hearing, it was likely to late to re-evaluate. However that is due to the Claimant’s previous conduct in relation to disclosure.

[18]As to the Claimant’s conduct of the litigation in relation to disclosure, the significant delay in providing hundreds of pages of documents has not been explained by him. I am satisfied that there was no good reason for this, none having been provided either to the Respondent (as far as I am aware) or to me. I accept the Respondent’s submission as to the impact of this on the litigation, and note it’s knock on effect to the date for witness statements. I accept the Respondent’s submission that the Claimant repeatedly maintained that he was able to meet deadlines and conduct litigation, and indeed, having worked as a head of department in a large school, I find that managing significant administration tasks and meeting deadlines are likely to have been something he was able to do. I am satisfied that the Claimant’s conduct of the proceedings in this respect was unreasonable, cause significant delay and additional costs, not limited to the additional cost of counsel.

[19]It follows that a costs order is in principle justified due to the Claimant unreasonably pursuing a protected disclosure claim, and his unreasonable conduct of proceedings in relation to disclosure.

[20]In exercising my discretion as to whether to award costs, my starting point is rule 73 of the Rules, which states: 73.—(1) A costs order is an order that the paying party make a payment to— (a)the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or (b)another party or 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 a hearing.

[21]I therefore cannot award photocopying costs as these were not incurred due to legal representation.

[22]As to counsel’s fees, I take into account that the Claimant has twice declined to respond to the application, both on 5 December, the final day of the hearing, and in writing as I directed. He has not contacted the Tribunal to give a reason or ask for additional time. I can only conclude that he has disengaged with the process as he did with the school.

[23]The limited information I have is that the Claimant has ability to pay. Further, I take into account the impact on Mrs Hutton of the Claimant’s knowingly false assertion that she had committed a criminal offence and the translation of this into his protected disclosure claim. Pursing this as a protected disclosure meant that it remained a live issue for an extended period, suggesting wrongdoing without a genuine belief that this had ever been the case. This deliberate conduct caused avoidable stress over a prolonged period. Pursuing the remaining protected disclosure claims, when the Claimant did not believe that the public interest was engaged, and hence, aware his claims could not succeed, put the Respondent to significant avoidable expense, in terms of investigation, witness evidence, review of documentation and the overall length of the hearing.

[24]I have taken into account the impact on the school of the costs of defending this matter to a hearing. If costs are not recovered, this will negatively impact on the education of children, as it will come directly from the school budget.

[25]The impact of the Claimant’s approach to disclosure, as noted above, caused delay, the time and cost of an application to extend the size of the bundle, time and hence cost of reviewing the documentation, and additional costs of counsel to be incurred.

[26]I am mindful that defending this claim, which was in significant part unreasonably brought, will have incurred costs in a far more significant than counsel’s fees. As such, I am satisfied that awarding the sum claimed for counsel’s fees is proportionate in view of the Claimant’s unreasonable conduct in bringing the protected disclosure claim and his approach to disclosure in the conduct of proceedings.