Mr S Hambly (in his capacity as executor of the estate of A Hambly (deceased) v Bond Oxborough Phillips: 6015161/2024
EMPLOYMENT TRIBUNALS
Case No 6015161/2024
Between
Mr S Hambly (in his capacity as executor of the estate of A Hambly (deceased)ClaimantBond Oxborough PhillipsRespondent
Before
Employment Judge HastieDate 5 January 2026
JUDGMENT
[1]The Claimants claim of discrimination arising from a disability is well founded and succeeds.[2]The Claimants claim of unfair dismissal is well founded and succeeds.[3]The Respondent shall pay to the Claimant £29,278.56 made up as follows: a) Basic award £873.00 (agreed between the parties) b) Notice pay £291.00 (agreed between the parties) c) Injury to feelings £25,000.00 d) Interest at 8% - £3114.56 (agreed between the parties)[4]The recoupment provisions do not apply as no benefits were claimed.[5]The application by the Claimant for aggravated damages is dismissed.[6]An award for loss of earnings was not pursued.[7]The Respondent shall pay the full balance to the Claimant within 42 days (agreed between the parties) 10.7 Judgment with reasons – rule 62 Case No:6015161/2024
REASONS
[1]The Claimant, Mr Hambly, makes an application for costs dated 20 January 2026. It was referred to me at the end of February 2026. I apologise to the parties for the delay in dealing with it.[2]On 18 December 2025 following a two day final hearing, I approved a judgment in favour of the Claimant on his complaints for unfair dismissal and discrimination arising from disability (Equality Act 2020 s.15). Oral reasons on liability and remedy were provided on 18 December 2025. The Judgment was sent to the parties on 20 January 2026. Both parties were legally represented at the hearing. Neither party sought written reasons in relation to the Judgment. Dealing with the costs application without a hearing[3]I consider that it is reasonable to proceed without a hearing. Both the Claimant and the Respondent have made written submissions. I have considered the overriding objective (Rule 3 of the Employment Tribunal Procedure Rules 2024), to deal with cases fairly and justly. This includes dealing with cases proportionately, avoiding delay, and saving expense. Hearing from the parties is unlikely to assist the Tribunal further. I find that I am able to determine the application on the papers. Time and expense for the parties as well as the Tribunal will be saved. The Claimant’s costs application[4]The application has been considered in accordance with the Employment Tribunal Procedure Rules 2024.[5]The Claimant makes the application on the following grounds: a) Rule 74(2)(a) - the Respondent acted unreasonably in the way in which the proceedings were conducted. b) Rule 74(2)(b) - The defence had no reasonable prospect of success.
The Law
[6]Rule 73 of the Employment Tribunal Procedure Rules 2024 sets out the definition of a costs order – (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 purposes of, or in connection with, an individuals attendance as a witness at a hearing.[7]Rule 74 of The Employment Tribunal Procedure Rules 2024 provides:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(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, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of any party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[8]Rule 75 sets out the procedure for determining such applications –(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.(2) The Tribunal must not make a costs order or preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).[9]The general principle in the Employment Tribunal 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 circumstances set out in the Rules. In this application, the Tribunal has a discretion to award costs where the conduct of a party meets the threshold test set out in the Rule 74.[10]The Tribunal’s discretion to make a costs order 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). 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).[11]In assessing whether or not the ground of no reasonable prospect of success is made out, the Tribunal has the benefit of having heard all the evidence in relation to the claims and the Respondents response to those claims.[12]The rules impose a three stage test: first, the Tribunal must ask itself whether a party’s conduct falls within rule 74(2)(a) or 74(2)(b) – in other words, is the Tribunal’s costs jurisdiction engaged? If so, secondly, the Tribunal must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party taking into account all the relevant factors. The third stage is the determination of the amount of any award (Daly v Newcastle Upon Tyne Hospitals NHS Foundation Trust EAT 0107/18), A Tribunal that jumps from stage one to stage three without actively considering the discretion inherent in stage two will fall into error (Monaghan v Close Thornton Solicitors EAT0003/01).
Conclusions
[13]In considering the application, I had access to the costs application, the parties written submissions, the electronic court file, and my note of my oral reasons given on 18 December 2025.[14]I do not intend to repeat the reasons for the liability and remedy judgment. The reasons were given on 18 December 2025 and there has been no request for written reasons.[15]The parties agreed at the start of the hearing in December 2025 that the claims turned on whether Mrs Hambly had resigned on 8 April 2024. I made findings of fact including those set out in the Claimants application for costs I found that Mrs Hambly had not resigned on 8 April but had been dismissed by the Respondent on 28 May 2024.[16]The Claimant in his costs application under ‘representations’ provides the same reason for his submission that both grounds in rule 74(2)(a) and (b) are met. The Claimant states that the Respondents assertion that Mrs Hambly had resigned was dishonest and this amounts to unreasonable conduct and/or shows that the response had no reasonable prospect of success.[17]The Claimant states that the Respondent was dishonest. The making of an untrue allegation can amount to unreasonable conduct. HCA International Ltd v May-Bheemul [2011] 3 WLUK 714 (endorsed by the Court of Appeal in Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797). The Claimant provides the following excerpt: …a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the Tribunal to examine the context and to look at the nature, gravity and affect of the lie in determining the unreasonableness of the alleged conduct. And: …where, in some cases, a central allegation is found to be a lie, that may support an application for costs, but it does not mean that, on every occasion that a Claimant fails to establish a central plank of the claim, an award of costs must follow.[18]The Claimant asserts at paragraph 13 of his costs application that the Tribunal should exercise its discretion to award costs because, a) When the Response was submitted, the Respondent knew or ought to have known that it had no reasonable prospect of success because it dishonestly alleged that Mrs Hambly had resigned when in fact she had not. b) The Respondent should be assessed more rigorously as it was professionally represented from the outset of the litigation. c) Costs are exceptional in the Employment Tribunal but so too has the Respondent’s defence to the claim been exceptionally dishonest, d) The level of costs sought is not punitive when the Tribunal considers the costs reasonably expended by the Claimant due to the Respondent pursuing what it knew or was an untrue defence.[19]The Respondent submits that the Respondent’s case had reasonable prospects of success. The Respondent in its written submissions dated 4 February 2026 details the content of the witness statement of Ms Browning in relation to the conversation that she says took place between her and Mrs Hambly on or about 2nd or 4th April 2024. The Respondent asserts that there is evidence (in particular Ms Browning’s statement) that is corroborative of Mr Clements version of events. In my findings on liability, I found that a conversation did take place between Ms Browning and Mrs Hambly prior to 8 April 2024, but that Mrs Hambly did not tell Ms Browning that she was going to resign. I also found that the conversation between Ms Browning and Mrs Hambly took place prior to the alleged resignation on 8 April and was therefore not confirmation that Mrs Hambly had in fact resigned. In my findings therefore, I did not accept the entirety of Ms Browning’s evidence. I did not find that Ms Browning had lied. I did not find that her evidence corroborated that of Mr Clements albeit it would have done at the time the defence was filed.[20]The Claimant makes his application on both grounds in rule 74(2) and asserts the same reasons for each. I do not agree that the threshold for making a costs order has been met. I found that Mr Clements on behalf of the Respondent had failed to follow procedures, had been vague in his evidence, and mistaken in relation to his recollection whether Mrs Hambly resigned on 8 April 2024. I did not find that either witness had lied. I did not find that the Respondent dishonestly alleged that Mrs Hambly had resigned, rather that there had been substantial and procedural failings on the part of the Respondent. The Respondent put forward a defence to the claims that was determined at the hearing of 17 and 18 December 2025. I do not find that the Respondent acted unreasonably in defending the claim nor that it had no reasonable prospect of success when the defence was filed, or by the time of the hearing. The claims required a hearing to determine the facts and that is what took place in December 2025.[21]The Respondent was legally represented throughout the proceedings. I do not find though that this results in the threshold in rule 74, either on its own or taken together with the other circumstances asserted by the Claimant, being met. As I have said, the defence was a not an unreasonable one and I did not find that there had been any dishonesty or unreasonableness on the part of the Respondent. Nor can it be said that there was any failure to apply the appropriate standard of judgment to the proceedings by the Respondents representative.[22]The Claimant accepts that costs are exceptional in the Employment Tribunal. The Claimant asserts though that the Respondent’s defence to have been exceptionally unreasonable. Having found that the defence was not unreasonable and that it did have some chance of success, I do not find that there has been any exceptional dishonesty on the part of the Respondent.[23]I therefore conclude that the threshold for costs is not met on either ground in rule 74(2).[24]If I am wrong about that, and had I gone on to consider whether to exercise my discretion in favour of making a costs award, I would not have exercised my discretion on either the first or the second ground in rule 74(2). The important point in exercising the discretion to award costs is to look at the whole picture and ask whether there had been unreasonable conduct by the Respondent in defending or conducting the case. The basis of the defence in this case was a question of fact as to what had occurred during the short meeting between Mrs Hambly and Mr Clements on 8 April 2024. I do not find, having considered the claim across two days in December 2025, that the Respondent was dishonest in its defence nor that the defence of the claim was misconceived or unreasonable.[25]The application for costs is refused.