Mr O Odebode v Look Ahead Care and Support Ltd: 6012532/2024
JUDGMENT
[1]The complaint(s) of race discrimination, sex discrimination, religion/belief discrimination and victimisation are struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospect of success. Just and equitable time limit: claim out of time[2]The claim of age discrimination was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The claim is therefore dismissed.REASONS
[1]On 23 September 2024, the claimant brought claims for age discrimination, race discrimination, religion discrimination and sex discrimination. He also mentioned ‘Bullying, harassment and victimisation’ under other claims.[2]The case had been listed for a case management preliminary hearing on 20 February 2025. Unfortunately, the tribunal was unable to hear it on that date and a new Notice of Hearing was sent out on 28 February 2025, listing the case management hearing for 6 August 2025 by video link.[3]The claimant had not logged in by the start of the hearing. There was some confusion about the date of the hearing in the joining instructions and the claimant said he was unable to join the hearing on 5 August 2025. The tribunal notified him that the hearing was on 6 August 2025, as set out in the Notice of Hearing.[4]At the start of the hearing on 6 August 2025, the claimant had not attended. The tribunal clerk contacted him and he said he was driving but would join shortly. The tribunal staff attempted to assist the claimant in joining the hearing but unsuccessfully.[5]The hearing went ahead in his absence and the case was listed for a preliminary hearing in public on 20 October 2025 to hear the respondent’s application for a strike out. As the claimant had not been able to attend the hearing, he was given an opportunity to clarify his claims before the next hearing, which he failed to do.[6]The claimant attended the hearing on 20 October 2025. The claimant applied to amend his claims. The application was refused. The respondent made its application for the claims to be struck out. The application was allowed and the claims were struck out.[7]The respondent makes an application for costs under Rules 74(2)(a) and 74(2)(b) of the Employment Tribunal Rules of Procedure 2024 on the grounds that the claimant has acted, abusively or otherwise unreasonably in both the bringing and conducting of the proceedings and that the claims had no reasonable prospect of success.[8]The respondent sent a costs warning to the claimant on 16 September 2025, pointing out their view that his claim was unmeritorious and offering him the opportunity to withdraw at that stage without risk of a costs application being made. Law[9]The power to award costs is set out in the Employment Tribunals Rules of Procedure 2024. Under Rule 74(2)(a) a tribunal may make a costs order and must consider making a costs order 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, or where any claim had no reasonable prospect of success.[10]The decision whether to make a costs order is in the discretion of the tribunal. Under Rule 82, the tribunal may have regard to the relevant party’s ability to pay.[11]In the employment tribunal, unlike the civil courts, costs orders are the exception rather than the rule. It is the case that, in the employment tribunal, the costs of defending claims (even if successfully) is a potential expense of employing people.[12]The status of a party who is a litigant in person is a relevant factor to be taken into account. In AQ Ltd v Holden EAT/0021/12, the EAT held that ‘A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to such people, who may be involved in legal proceedings for the only time in their life. They are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Further, even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This is not to say that lay people are immune from orders for costs: far from it, as case law makes clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.’[13]I do not find that the claimant’s conduct has been abusive, nor do I find that he has conducted the proceedings unreasonably. He is a litigant in person who is aggrieved at the way he has been treated at work, most recently by the respondent’s decision not to uphold his grievance appeal.[14]It is not unusual for litigants in person to rely on harassment, bullying and victimisation as grounds of claim even where no protected characteristic has been identified. In this case, it appears that at least part of the claimant’s complaint is that his grievance appeal was not upheld due to an allegation that he had recorded a meeting without consent.[15]The claims were struck out as they had no reasonable prospect of success. However, I find that the claimant was genuinely aggrieved and had misunderstood the scope of the tribunal’s jurisdiction.[16]The case management hearing which was not attended by the claimant went ahead in his absence. The respondent was not prejudiced by this. If the claimant had attended (and I accept that he tried to), the outcome of that hearing is likely to have been the same namely, that a preliminary hearing in public would be listed to hear the respondent’s strike out application.[17]The respondent’s application was successful. The proceedings were disposed of in their entirety at a relatively early stage. It is not necessarily the case that every claim that is struck out for having no reasonable prospect of success should never have been brought in the first place, particularly where the claimant is a litigant in person.[18]If I am wrong and it is the case that the claimant behaved in a manner proscribed by the rules, I would not exercise my discretion in favour of making a costs order.[19]For the above reasons, the application for costs is refused.