Mr E Walker v Peninsula Business Services Ltd: 6021729/2025
REASONS
[1]The respondent applied for costs at the hearing on 10 July 2025 but there was insufficient time to deal with this then. The respondent was invited to make the application in writing and I indicated my intention to deal with it in writing. The respondent then made their application on 22 August 2025 after receipt of the written reasons. The claimant was copied in. No representations were received from the claimant.[2]The application was referred to me on 8 December 2025, and following my instruction on that date, the tribunal then wrote to the parties on 14 February 2026 stating again my intention to address the application on the papers and giving the claimant a further opportunity to object and specifically requesting details of his means. The claimant did not reply to this. There are currently delays in processing correspondence due to the volume of work received by the tribunal but this does mean the claimant has had ample time to raise any objection or other representations in response to the application.[3]The evidence I do have about his means is from a further claim he has submitted (6031369/2025) where his income at the respondent was stated to be £3,100 net monthly. The respondent ticked to say that this was correct in the response to that claim. He was then summarily dismissed by the respondent on 6 June 2025 following his resignation with 12 weeks’ notice the day before. He also stated on his 2nd claim that by the date of that claim (25 August 2025) he did not have another job.Relevant law
[4]Rule 74 Employment Tribunals Rules of Procedure states that I must consider making a costs order where I consider that a party has acted unreasonably in either bringing part of the proceedings or in the way part of the proceedings have been conducted. I then have discretion whether to order costs, and the amount, below the limit of £20,000. However the making of, and amount of, the order should not be punitive. If I decide to make an order it should be compensatory. The costs should have been reasonably and necessarily incurred. I can take account of the claimant’s ability to pay both in deciding whether to make an order, and the amount of the order, but need to balance this against compensating the party who has reasonably incurred the expense. The ability to pay is not limited to the ability to pay on the date the order is made.Conclusions
[5]In their costs application the respondent has introduced other issues about the way the claimant is conducting the litigation but I am limiting this decision to the claimant’s pursuit of interim relief.[6]The respondent’s application is in part premised on the claimant being an experienced employment law practitioner. He does hold himself out as having employment law experience on his CV and for the period he worked for the respondent he was working as a litigation consultant. That was a fairly short period and the respondent says there were performance issues. I am not clear from the claimant’s CV the extent of his experience. He has clearly had an interest in employment law and has been building his experience over a number of years but the extent of that experience and in what capacity is to me unclear from the CV. In particular it is not clear whether the relevant roles listed in his career history were full-time employed roles or much more part-time volunteer roles or somewhere in between. There are periods of overlap with work done at more than one organisation concurrently. For example the lengthiest role listed is at a law centre, but there is a significant period where he has listed that he worked at both the law centre and as a Course Administrator elsewhere, at the same time that he was a law student (albeit that could have been on a part-time basis). I make no assumption about this other than I am unclear as to the extent of the claimant’s experience and whether it is fair to consider him an experienced employment law practitioner for costs purposes.[7]That said I accept that the claimant has some relevant experience and the ability to research the nature of the legal tests for both automatic unfair dismissal for whistleblowing (that the whistleblowing must be the principal reason for the dismissal) and interim relief (that the bar is higher than the balance of probability).[8]I consider the claimant should therefore have known that his application for interim relief was a “long shot” from the outset. I base this on the evidence that the claimant believed he was about to be dismissed, possibly without notice, before he made his disclosures. He also knew that he had not attended the disciplinary hearing and he had turned off his work phone and so the disciplinary hearing was decided in his absence without any mitigation he might have offered. He also knew that he had not addressed the disclosures to the person making the decision to dismiss meaning he did not have evidence that the dismissing manager knew he had made disclosures.[9]He then received Mr Cater’s witness statement on 7 July 2025 stating that he was not aware of the disclosures before the decision to dismiss and citing IT evidence and a conversation with another manager that tend support this. At that point the claimant should have known he was in real difficulty in showing whistleblowing was the principal reason for dismissal and that he did not meet the high bar for interim relief. I agree that it should have been apparent at this stage that the application was futile. Whether or not it was unreasonable to make the application in the first place, it was unreasonable not to have withdrawn the application at that point and save the respondent the expense of the hearing.[10]I therefore am obliged to consider costs under rule 74 and I am minded to award a contribution to compensate the respondent for the costs.[11]On the other hand there is likely to have been overlap in the work done by the respondent in preparation for the interim relief hearing and the work the respondent has done and will need to do in any event to prepare for the case. I have also kept very much in mind that costs are not punitive but compensatory and they must have been reasonably and necessarily incurred. The respondent’s business is employment law litigation. They are represented by a solicitor at their own legal services entity. She was in attendance at the hearing (costs are claimed for her attendance £446.50 plus VAT in total). They also instructed counsel (fees claimed £2500 plus VAT). Clearly that was a matter for the respondent and they are entitled to their choice of representation and this was therefore not unreasonable per se. However given their own confidence in the futility of the application I query whether the full extent of these costs were necessarily incurred, and therefore whether it is appropriate to order the claimant to contribute to the full extent of the costs. On any view however it was necessary for someone to attend on the respondent’s behalf to make representations. The sum of at least £446.50 plus VAT (£535.80) was reasonably and necessarily incurred, if not more.[12]Moreover even though the claimant has not taken the opportunity to provide evidence of his means I consider it is still appropriate to take account of the fact he earned £3100 with the respondent but lost that overnight in a summary dismissal and had not according to his claim form obtained other work by 25 August 2025 (nearly three months later). In these circumstances I am concerned about the fairness of making too high a costs order. On the other hand given the claimant’s skills and experience in his CV it is likely he will obtain further work at some stage, if not already, if he reasonably mitigates his loss, so this is not a reason to make no order at all. He could seek to pay the sum by instalments.[13]Balancing all of the above I consider the appropriate order for costs is £535.80, taking account of the claimant’s means and that those costs atleast were necessarily incurred.[14]This should not be taken to be an indication of the merits of the substantive case at the final hearing and in any event the claimant has now issued further proceedings raising other matters. Approved by