H Miah v Morgan Stanley UK Ltd and Others: 6022729/2024

EMPLOYMENT TRIBUNALS

Case No 6022729/2024

Between

H MiahClaimant

Morgan Stanley UK Ltd and OthersRespondent

Before

Employment Judge Dowling

Self-represented for claimant

Michael White (instructed by counsel) for respondent

Date 27 March 2025

JUDGMENT

The claim has been brought outside the time limit provided by Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the claim is therefore dismissed.

REASONS

[1]The claimant seeks to bring a claim of breach of contract against the Respondents.

[2]This case was listed for a public preliminary hearing to determine the following matters: i. Whether the claimant's claim was brought within time, ii. If it was not, whether it was reasonably practicable to have presented the claim in time and iii. whether the claim was presented within a reasonable time thereafter.

The Hearing

[3]The hearing was conducted by way of CVP. The claimant represented himself. The respondents were represented by Mr White of counsel. The hearing was listed for a day with the parties required to attend only for the morning and the afternoon reserved for the judge in chambers. This listing had taken into account the impact on the claimant of Ramadan and Friday prayers.

[4]The claimant was initially unable to join the hearing on camera which delayed the beginning of the hearing. However, he resolved this and the hearing began at 10:45 am. The claimant asked to be released from the hearing to attend Friday prayers at the mosque. I agreed to this, and the hearing was adjourned between 11:45 and 1pm. The claimant was unable to return home in time to resume the hearing at 1pm and re-joined the hearing at 1pm from his car. He confirmed that he was content to proceed in those circumstances, that he had access to the documents on his tablet and he requested no specific adjustments.

[5]As the claimant was unrepresented, I took into account the relevant provisions of the Equal Treatment Bench Book including that the challenges faced by litigants in person often stem from their lack of knowledge of the law and court or tribunal procedure. Therefore, I confirmed with the claimant that he understood the purpose of the hearing, that he had had ample time to prepare and comply with the directions and orders, that he understood what was expected of him throughout the hearing, and that he was given sufficient time for his needs at the hearing.

[6]The claimant had provided a witness statement and the respondents confirmed they did not wish to cross-examine him on it as the facts were not disputed. The claimant did not give oral evidence and relied on his skeleton argument, witness statement and oral submissions. Applications

[7]The claimant had made various applications prior to the hearing, particularly regarding disclosure. However, it was not necessary to determine those as they were all contingent upon the case being allowed to proceed.

[8]The claimant applied for an anonymity order under rule 49. The respondents opposed this. I refused the application on grounds that the principle of open justice outweighed the claimant’s desire not to have his name disclosed within the proceedings.

[9]The claimant had indicated prior to the hearing he wished to preserve the option to withdraw his claim should the Tribunal find it unlikely to succeed. I informed the claimant that it was not possible for the Tribunal to give an indication, or preliminary view, on whether his claim was likely to succeed, and he confirmed he was content to proceed with the claim. I reminded him during the hearing that it was open to him to withdraw his claim at any time, and he confirmed that he wished the claim to proceed.

[10]The respondents raised various arguments in their skeleton argument as to why they contend it ought to be struck out, including the rule in Henderson v Henderson and the principle of res judicata. However, whilst expressly reserving their position in regard to those argument in the future conduct of the proceedings, the respondents did not pursue those arguments at the hearing where their argument was limited to the jurisdiction/ time limit issue. The documents

[11]The parties confirmed at the start of the hearing that they had all the relevant documents including the main bundle. The parties confirmed that the bundle included all the documents that the claimant had wanted to be included. Although the claimant had asked for unredacted copies to be included, I was satisfied that this was not relevant to the jurisdiction question the tribunal was required to determine.

[12]On the day of the hearing I was provided with a further bundle which was titled “Applications by claimant” although it contained more material than solely applications by the claimant. This bundle included a witness statement from the claimant. The claimant had also submitted material to the Tribunal obtained via a data subject access request (DSAR) made to the respondents, which I have taken into account.

[13]I was provided with skeleton arguments by both parties and an authorities bundle. I have considered the documents in full. Issues

[14]The issues before the tribunal were: i. Whether the claimant's claim was brought within time, ii. If it was not, whether it was reasonably practicable to have presented the claim in time and iii. whether the claim was presented within a reasonable time thereafter. The facts of the claim

[15]Briefly, the facts of the claim are as follows. The claimant applied for a role at the first respondent’s company. He was offered a role on 28 April 2022. That offer was, the respondents submit, conditional on the satisfactory completion of pre-employment checks. The respondents state that the checks were failed, and the offer of employment was withdrawn on 13 June 2022, the date on which the claimant was due to commence employment with the first respondent. The respondents’ position is that the contract was rescinded.

[16]The respondents submit that the claimant was asked on more than once occasion as part of their pre-employment screening whether there were any adverse county court or other judgments against him to which he gave misleading responses by failing to disclose that there had been adverse county court decisions against him. The respondents contend that he had in fact been subject to four CCJs in the period 2017– 2020. This led to the respondents withdrawing the offer of employment. The respondents characterise that as a recission of contract. These events took place in 2022.

[17]On 20 December 2024 the claimant submitted an ET1 alleging breach of contract against the respondents. Related proceedings

[18]The claimant has previously brought an employment tribunal claim against the respondents in respect of these events at the London East Employment Tribunal in 2022 (claim number: 3205659/2022). That claim was brought on grounds of alleged race discrimination (not breach of contract). It was subsequently withdrawn by the claimant before a final merits hearing.

[19]In August and September 2024, the claimant brought four County Court claims arising from the same set of facts as the current ET proceedings against two of the respondents, which allege breach of contract, followed by a further 5 County Court claims brought in December 2024. The claimant has also brought proceedings arising from the same sets of facts against the respondents in the United States of America. Bringing a breach of contract claim in the Employment Tribunal

[20]An employee may bring a claim before an employment tribunal for recovery of damages for breach of a contract of employment if the claim arises or is outstanding on the termination of the employee’s employment.

[21]Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 provides that an employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented to the tribunal —(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; and

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

[22]The onus is on the Claimant to prove that it was not reasonably practicable to present his claim in time. That “imposes a duty upon him to show precisely why it was that he did not present his complaint” within the primary time limit: Porter v Bandridge

[1978] ICR 943

(CA), 948D. Then, if he succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable.

[23]The Court of Appeal undertook a comprehensive review of the authorities in Palmer and Saunders v Southend-on-Sea Borough Council

[1984] 1 All ER 945

. Here the Court of Appeal stated the overall test is whether it was "reasonably feasible to present the complaint to the employment tribunal within the relevant three months". The case suggests that there are a number of factors which may be considered. However, those factors may or may not be relevant to the tribunal's view. Those factors that may be taken into account include the following: the manner in which and the reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used; what was the substantial cause of the employee’s failure to comply with the statutory time limit; whether the employee had been physically prevented from complying with the limitation period, for instance by illness or postal strike or something similar; at the time of dismissal, and if not when thereafter, did the employee know that he had the right to complain of unfair dismissal (in the current case breach of contract); has there been misrepresentation about any relevant matter by the employer to the employee; did the employee receive advice at the material time, and if so, from whom; what was the extent of the advisers knowledge of the facts of the claimant's case; what was the nature of the advice given; and has there been substantial fault on the part of the employee or his adviser which has led to failure to comply with the statutory time limit.

[24]That is of course guidance. The tribunal may take into account all the circumstances of a particular case. Conclusions Was the claimant employed under a contract of employment?

Conclusions

[25]Section 230(1) of the Employment Rights Act provides that an employee is an individual who has entered into or works under a contract of employment.

[26]It was agreed that the respondents and claimant entered into a contract of employment, although the claimant did no work under it. Whilst the respondents contend that there was no possibility of an employment relationship between the claimant and the second and third respondents it was unnecessary for the purposes of this hearing to resolve that issue. I find that the claimant was employed under a contract of employment by the respondents. Was the contract of employment terminated?

[27]The offer of employment was withdrawn on 13 June 2022, the date on which the claimant was due to commence employment with the first respondent.

[28]Whilst the respondents characterise this termination of the contract as a recission it was not argued before me that there had not been a termination such as to engage the jurisdiction of the tribunal.

[29]I find that this was a termination of the employment of the employee for the purposes of Article 4 of the 1994 Order. Was the claimant's claim brought within time?

[30]The effective date of termination was 13 June 2022. Therefore, the statutory time limit to bring the claim was 12 September 2022. The claimant brought the claim on 20 December 2024. Therefore the claim was not brought within time. Was it reasonably practicable to have presented the claim in time?

[31]The claimant’s particulars of claim are very lengthy, over 250 paragraphs, and difficult to follow. They conflate the civil courts and this Tribunal’s jurisdiction. Whilst I take into account that the claimant is selfrepresented, I note that in those particulars of claim the claimant has the ability and sufficient understanding to cite multiple authorities as well as various heads of claim and legal concepts. He also has significant litigation experience having brought multiple sets of proceedings arising from the termination of his employment. The claimant confirmed he had conducted legal research and his particulars of claim and correspondence to the Tribunal show a degree of proficiency and understanding of legal concepts.

[32]Despite that legal research and extensive apparent proficiency and understanding, the claimant had not addressed in his ET1 or particulars of claim the issue of the tribunal’s jurisdiction to hear a claim which is, on its face, more than two years out of time.

[33]In his correspondence to the Tribunal, he referred to the claim being properly brought within the jurisdiction of the Tribunal under what was then Rule 2 of the Employment Tribunal Rules of Procedure i.e. in accordance with the overriding objective. He states that denying jurisdiction on technical grounds would unjustly prevent the Claimant from pursuing a legitimate claim against the Respondents. He also identified, correctly, that a claim for breach of contract in the Employment Tribunal is brought under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 but incorrectly asserted that “The claim is therefore well within the six-year limitation period for breach of contract claims under Section 5 of the Limitation Act 1980”.

[34]The claimant asserts that the delay, if any, was minor and caused by the Respondents’ lack of engagement in meaningful resolution efforts (page 13 of the Bundle of Claimant’s applications). He also stated that the respondents’ failure to provide clear explanations caused unnecessary delays in pursuing this claim.

[35]The claimant submits that relevant evidence has been concealed by the respondents, which affected his ability to bring the Tribunal claim in time and that in accordance with the principle set out in Dedman v British Building & Engineering Appliances Ltd

[1973] ICR 53

, a claim should not be time-barred where it was not reasonably practicable to file within the limitation period.

[36]The respondents submit that it clearly was reasonably practicable for the claimant to present his claim within three months from the date of the first respondent's withdrawal of the claimant's job offer on 13 June 2022 and point to the fact that he did bring an ET claim arising out of the same or substantially the same facts in November 2022.

[37]They say the claimant has presented no sensible evidence to the effect that it was not reasonably practicable for him to present this claim within three months from the effective date of termination of his contract.

[38]Applying the guidance in Palmer and Saunders v Southend-on-Sea Borough Council

[1984] 1 All ER 945

, I find that it was reasonably practicable to have presented the claim in time. The claimant did in fact bring employment tribunal proceedings against the respondents in time having conducted legal research. The ET1 form asks a claimant if they are bringing a claim for breach of contract which he could have indicated he wished to do so but failed. He could reasonably have researched the tribunal’s jurisdiction to consider complaints of breach of contract when he brought that claim but did not so.

[39]He did not identify any physical barrier to bringing the claim and indeed did so, albeit under another legal provision. He may not have been aware of the tribunal’s jurisdiction and whilst I take into account, he was unrepresented, a small amount of legal research, which he is clearly capable of, would have revealed this.

[40]It would have been open to him to obtain legal advice and whilst the claimant says he did not have financial resources to do so, there are other free sources of legal advice available and there was no evidence the claimant had attempted to obtain that.

[41]The claimant stated that the respondents should have told him more about the context or underlying facts of his dismissal which would have allowed him to have sufficient knowledge to bring the claim. He appeared to suggest that there had been some concealment about the dismissal and referred to this being pre-determined. However, despite the onus being on the claimant to show that it was not reasonably practicable to have presented the claim in time, he failed to direct the tribunal to specific examples of concealment.

[42]I did not find there to have been misrepresentation about relevant matters by the employer to the employee. That the respondents staff had formed a view that the employment contract would be terminated before communicating that to the claimant is inevitable. That the claimant did not have a right of appeal against the respondents’ decision is something that would have been obvious to him at the time of dismissal. The claimant provided no evidence of concealment of material which would have rendered it not reasonably feasible to bring the claim within time.

[43]I find that the delay in bringing the claim was substantial and reject the claimant’s assertion that the delay was minor.

[44]I attach no weight to the claimant’s contention that delay in bringing the claim was caused by the respondents’ lack of engagement in meaningful resolution efforts as there was no evidence this alleged conduct had any impact on the claimant’s ability to bring a claim.

[45]I find that it was reasonably practicable to have presented the claim in time. Was the time within which the claim was presented thereafter reasonable?

[46]In the event that I am incorrect on that I now go on to determine whether the time within which the claim was presented was reasonable.

[47]The claimant invites the tribunal to exercise its discretion to allow the claim to proceed out of time as it is just and equitable to do so (paragraph 2 particulars of claim). He states he was unaware of the full legal implications of the respondent’s conduct until he received professional guidance at a later stage and that he has acted promptly upon becoming aware of his rights.

[48]The claimant submitted that he should not be prejudiced for not bringing a claim within the statutory time limit as key facts were unavailable to him which would have allowed him to bring a claim in time.

[49]The respondents submit that even if a discretion were engaged – which they say it should not be – a period of more than two years is not a reasonable further period in which to present the claim, because:(i) that period is extremely long relative to the default limitation period in ET proceedings;

(ii) the claimant has had ample further time in that period in which to bring a claim – and did bring multiple other claims, in multiple fora, before this one;

(iii) C’s case is vexatious in the extreme, a gross abuse of process, and has no reasonable prospects of success in any event.

[50]The respondents also state that the claimant has brought breach of contract claims in the County Court in September 2024 whereas he failed to bring this Employment Tribunal claims until December 2024.

[51]I find that the claim was not presented within such time as was reasonable. The claimant was aware of the material facts in 2022, this is a claim arising from a dismissal which he has extensively litigated. The period by which he is out of time is very long relative to the primary time limit. He has had ample opportunity to familiarise himself with the tribunal’s jurisdiction and institute proceedings if he wished to do so .

[52]I find that the claim was not presented within such time as was reasonable. Further considerations

[53]The respondents invited the tribunal to find the claim is totally without merit. There is no provision in the Tribunal Rules to do so and I make no finding in relation to that.

[54]The respondents wished to apply for a costs order against the claimant at the hearing. The claimant did not wish the application to be considered at that hearing. I did not hear that application due to pressure of time, the listing of the hearing and to prevent unfairness to the claimant who was self-represented and unable to satisfactorily respond to such an application following a lengthy contested hearing on jurisdiction.

[55]Should the respondents wish to pursue a costs application they must make a fully particularised written application to the Tribunal, with relevant facts and law set out, accompanied with relevant authorities and copied to the claimant. Approved by:

Conclusions

[1]Following a preliminary hearing on 7 March 2025 to determine a preliminary issue I issued a reserved judgment with reasons on 27 March 2025 dismissing the claimant’s claim under article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. This was on the grounds that the claim had been brought outside the time limit provided by article 7.

[2]The claimant’s appeal to the EAT against that judgment was rejected on the sift. The claimant has exercised his right to a rule 3(10) hearing.

[3]The claimant had been put on notice of the respondents’ intention to pursue a costs application prior to the hearing of 7 March. The initial costs application was included in the respondents’ letter of 27 January 2025.

[4]During the hearing on 7 March the respondents sought to apply for a costs order in respect of a proportion of their costs incurred in defending the claim. I did not hear the application on that day to prevent unfairness to the claimant who was self-represented and would have been unable to satisfactorily respond to such an application following what had been a lengthy contested hearing on jurisdiction.

[5]Thereafter the respondents confirmed they wished to pursue an application for a costs order and the claimant applied for a preparation time order. The matter was listed for a costs hearing to be heard on 11 September. Orders, directions and applications

[6]I made orders and directions on the 10 July in respect of the costs hearing. Thereafter the claimant made a number of applications including an application to compel employees of the respondents to attend tribunal to give witness evidence, which was rejected, and an application for the hearing to be postponed pending the outcome off his appeal to the EAT, which was also rejected.

The Hearing

[7]This case was listed for a CVP hearing on 11 September to determine: i. The respondents’ application for a costs order ii. The claimant’s application for a preparation time order.

[8]At 17:04 on 10 September the claimant e-mailed the respondents and the Tribunal to say that he would not attend the hearing due to what he described as “unavoidable personal circumstances” coupled with a mandatory job centre appointment at 14:20. He invited the tribunal to proceed to determine the matter on the basis of his written submissions and bundles already filed and served. He also stated that if the tribunal was minded to consider his attendance indispensable for fairness he asked that the matter be re-listed at a later date rather than determined in his absence.

[9]The tribunal made enquiries of the claimant on the morning of the hearing to seek further explanation as to what constituted the “unavoidable personal circumstances” he referred to, when he had become aware of his appointment at the job centre, to provide evidence of the appointment and to remind him that it was likely he could be released from the hearing in good time to enable him to attend the appointment. The claimant responded after the hearing had begun. He provided no evidence of an appointment at the job centre, which he said he had become aware of on 29 August, although he said he would be able to obtain one after the appointment. He described the “unavoidable personal circumstances” as the recent death of his father and duties he had to support his mother and a surveyor attending his property that morning on matters he could not reschedule. He repeated his request that the tribunal should proceed to determine the respondents’ cost application and his preparation time application on the basis of the written materials already submitted.

[10]On receiving the claimant’s e-mail informing them that he did not propose to attend the hearing, the respondents had emailed the tribunal and claimant to indicate their view that the matter could proceed in the absence of the claimant and the respondents’ counsel confirmed at the hearing that this remained their position.

[11]Rule 47 of the Employment Tribunal Procedure Rules 2024 (“the Rules) provides that the tribunal may proceed in the absence of a party. The claimant had received ample notice of the costs hearing and ought to have prioritised attendance. The claimant had submitted a skeleton argument and set out the grounds on which he opposed the respondents’ application. He had provided a statement of means and his authorities were included in the bundle before me. I was satisfied that there was sufficient material before the tribunal to allow it to conduct the hearing in a way that was fair to both parties and determine the applications before it. I was satisfied that it was in accordance with the overriding objective of dealing with matters proportionately and avoiding delay, so far is compatible with proper consideration of the issues, to conduct the hearing in the claimant’s absence. The documents

[12]Neither party sought to rely on witness evidence. Both parties provided a skeleton argument and a schedule of costs, in the case of the respondents, and summary of preparation hours in the case of the claimant.

[13]The respondents compiled a hearing bundle of 1100 pages which included the claimant’s skeleton arguments. The respondents also provided an authorities bundle of 168 pages including those authorities which the claimant sought to rely on.

[14]On the day of the hearing I was provided with a short supplementary bundle which contained a series of emails between the claimants and the respondents’ representatives dated the 27th of August. The facts of the claim

[15]Briefly, the facts of the claim are as follows. The claimant applied for a role at the first respondent’s company. He was offered a role on 28 April 2022. The offer was withdrawn on 13 June 2022, the date on which the claimant was due to commence employment with the first respondent.

[16]The respondents submit that as part of their pre-employment screening the claimant was asked on more than one occasion whether there were any adverse county court, or other, judgments against him to which he gave misleading responses by failing to disclose that there had been adverse county court decisions against him. The respondents contend that he had in fact been subject to four county court judgments in the period 2017– 2020. This led to the respondents withdrawing the offer of employment. The respondents characterise that as a recission of contract.

[17]On 20 December 2024, more than 2 years after the events complained of, the claimant submitted an ET1 alleging breach of contract against the respondents.

[18]Following a preliminary hearing on 7 March 2025, that claim was dismissed as it had been brought outside the time limit provided by Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, it was reasonably practicable to have presented the claim in time and the claim was not presented within such time as was reasonable.

[19]The respondents have applied for a cost order in respect of a proportion of the costs incurred in defending the claim. The appellant has applied for a preparation time order. The legal framework Costs

[20]The power to make a costs award is contained in Rule 74 of the of the rules. Under rule 74(2)(a) the tribunal must consider making a costs order or a preparation time order where it considers that a party has acted vexatiously, abusively disruptively or otherwise unreasonably in either the bringing of the proceedings or part of it or the way that proceedings or part of it have been conducted and under 74(2)(b) where any claim, response or reply had no reasonable prospect of success.

[21]As the authorities explain the rule poses 2 questions, firstly whether the tribunal has power to make an order (“the threshold criteria”) and secondly, if so, whether the discretion should be exercised. The tribunal's discretion to make a costs award against the party is wide and unfettered: See Barnsley Metropolitan Borough Council v Yerrakalva

2012 IRLR 78

CA.

[22]Rule 82 provides that in deciding whether to make costs order the tribunal may have regard to the paying party’s ability to pay.

[23]The respondents limited their application to £10,000 which is only a small proportion of the actual costs of £33,000 incurred prior to the cost hearing.

[24]The respondents’ application for costs was put on both bases of Rule 74: i. that the that the claimant has acted vexatiously abusively or otherwise unreasonably in the bringing and conduct of the proceedings; and ii. that the claimant’s claim had no reasonable prospect of success.

[25]The claimant resisted the respondents’ costs application. His core response at paragraph 8 of the ASA is that: i. The costs case is anchored in a misleading premise (that the Claimant did not disclose CCJs). ii. ADR / Settlement Conduct: The Respondents made no settlement proposals. By contrast, the Claimant put forward reasonable proposals for consensual resolution, including a global settlement intended to dispose of all related proceedings…In circumstances where the Respondents declined opportunities to narrow or resolve the dispute, an order awarding them costs would be inconsistent with proportionality and unjust. iii. Even if the preliminary time-bar ruling stands, costs do not follow the event in the ET; the exercise is discretionary, calibrated by conduct, causation, and proportionality.

[26]The claimant’s argument that the costs case is anchored in a misleading premise is misconceived. The issue to be determined is not whether the respondents acted reasonably in withdrawing their offer of employment, the issue is whether the claimant’s claim had a reasonable prospect of success and whether his conduct in bringing the proceedings and his conduct of the proceedings is vexatious, abusive or otherwise unreasonable. I reject the claimant’s submission on this point.

[27]I also reject the claimant’s submission that the respondents’ failure to engage in “global settlement” discussions is a reason not to make a costs order in this case. The respondents were entitled to defend their position and choose to do so. This was not the first occasion on which the claimant had brought proceedings against the respondents and, given the respondents had succeeded in resisting the earlier claim, it is not unreasonable that they would do so again for a claim which, on its face, was brought significantly out of time without any compelling explanation as to why it should be allowed to proceed. Whilst failure to engage in settlement discussion without good reason could, in certain circumstances, be relevant, the respondents appear to have had very good reason not to do so in this case.

[28]As to the claimant’s third ground for resisting the costs application, this is an argument that even if the threshold for making a costs order has been met, the tribunal should exercise its discretion not to make a costs order in this case on grounds including that costs do not follow the cause in the employment tribunal, the tribunal must ensure that it costs order is not punitive but is in accordance with the law and proportionate.

[29]The respondents submit that the claimant is a vexatious litigant. They are currently seeking a civil restraint order against the claimant in the civil courts. This is said to be one of 14 separate claims that the claimant has brought against the respondents (or other permutations of their identities) in respect of the same matter since late 2022 – including:(a) ten County Court actions;

(b) two ET claims; and

[30]The claimant previously brought an employment tribunal claim against the respondents in respect of these events at the London East Employment Tribunal in 2022 on grounds of alleged race discrimination.

[31]The claimant withdrew that claim after the Tribunal made three deposit orders against him.

[32]The Respondents submit that the current claim was an attempt to relitigate matters that had already been determined and they indicated that had the matter proceeded had they would rely on the doctrines of res judicata and the decision in Henderson v Henderson. This ET claim, they say, was “a further front in his deeply unreasonable campaign of vexatious litigation against Rs” [7] RSA.

[33]The claimant submits at [10] ASA that “The Tribunal’s task is to adjudicate this application by this Respondent group in this claim, under r.74(2), not to punish alleged global litigation conduct—particularly where those other matters are pending or disputed. The Tribunal should resist the prejudicial drip-feed of external allegations (e.g., CRO applications) which are irrelevant to whether this costs bid is justified and proportionate”.

[34]I agree with the claimant on this issue. Frustrating and disproportionately expensive as it no doubt is for the respondents to find themselves challenged by the claimant in so many jurisdictions, this tribunal’s inquiries and jurisdiction are limited to the matters before it. Whilst I take the context somewhat into account, in that I find the claimant to be a serial litigant, I am unable and unwilling to speculate as to whether matters which are not before the employment tribunal are well-founded or reasonably brought. I reserve my considerations to the case before me. The exception to this is the former ET proceedings brought against these respondents and withdrawn by the claimant as they are matter of record, they are resolved, they are within the jurisdiction of the employment tribunal and they are relevant to matters I am required to determine.

[35]The respondents submit that the claimant’s conduct in bringing the proceedings and his overall conduct of them, and many individual aspects of that conduct, have been vexatious, abusive, disruptive and otherwise unreasonable. They describe the claimant’s conduct as “harassment by litigation” [47] RSA, that this claim in itself is abusive even if looked at in isolation as it is prolix, hard to follow, significantly out of time. They submit that the claimant’s conduct of this claim is abusive as: i. in the two and a half months running up to the preliminary hearing, he made on average some four or five applications to the Tribunal a week, and sent innumerable emails to both the Tribunal and respondents ii. he produced some six lengthy, garbled documents setting out purported submissions in the days leading up before the hearing . In doing so he relied on several authorities that do not exist; iii. he threatened to report Rs’ Counsel to the BSB, without any proper basis for doing so iv. he has repeatedly emailed senior management at the first respondent to say, among other things, that the in-house lawyers working on the case are acting unethically and should be removed from it.

[36]Secondly, they say even on the claimant’s own case, he never had any possible case against the second or third respondents, neither of whom ever contracted with the claimant.

[37]I take into account that the litigant has not been professionally represented during these proceedings. As Judge Richardson held in AQ Ltd v Holden

[2012] IRLR 648

, EAT, ''A tribunal cannot and should not judge a litigant in person by the standards of a professional representative…Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life…Even if the threshold tests for an order of 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”.

[38]However, Judge Richardson acknowledged that it does not follow from this “that lay people are immune from orders for costs: far from it, as the cases make 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”.

[39]As Underhill J in Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT, held “the basis on which the costs threshold was crossed was not any conduct which could readily be attributed to the appellant's lack of experience as a litigant” but was “her fundamentally unreasonable appreciation of the behaviour of her employers and colleagues”.

[40]The test for ‘vexatious’ is that given by Lord Bingham in Attorney General v Barker

2000 1 FLR 759

, QBD (Div Ct). According to His Lordship, ‘the hallmark of a vexatious proceeding is… that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’. This suggests that where the effect of the conduct falls within Lord Bingham’s stringent definition, this can amount to vexatious conduct, irrespective of the motive behind it.

[41]Whilst I make allowance for the fact that the litigant is unrepresented, he has wide experience of conduct of litigation in multiple fora. At the hearing of 7 March the claimant confirmed that he had conducted legal research and I found his particulars of claim and correspondence to the tribunal showed a degree of proficiency and understanding of legal concepts. However he failed to address in his ET1 or particulars of claim the issue of the tribunal’s jurisdiction to hear a claim which is more than two years’ out of time.

[42]The respondents have been put to time, trouble and expense to defend a hopeless claim, two years’ out of time, arising from exactly the same facts as one which the claimant had already withdrawn.

[43]I find that the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing these proceedings.

[44]In accordance with the overriding objective and the need to deal with matters proportionately, I make no findings as to the matters raised at paragraphs 35 and 36, which are unnecessary to determine the respondents’ or claimant’s application.

[45]I go on to consider whether, on an objective measure, the claim had any reasonable prospect of success (see Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT).

[46]The effective date of termination was 13 June 2022. Therefore, the statutory time limit to bring the claim was 12 September 2022. The claimant brought the claim on 20 December 2024.

[47]The claimant faced the very significant barrier of the claim being, on its face, more than two years’ out of time. For the claim to have any prospects of success the claimant would have to show that it was not reasonably practicable for the claim to have been brought in time or that the claim was presented within such further time period as was reasonable.

[48]I adopt the analysis of the claimant’s claim from my earlier judgment which is material to the question of whether there was a reasonable prosect of the claim succeeding.

[49]The claimant submitted that relevant evidence had been concealed by the respondents, which affected his ability to bring the Tribunal claim in time and that in accordance with the principle set out in Dedman v British Building & Engineering Appliances Ltd

[1973] ICR 53

, a claim should not be time-barred where it was not reasonably practicable to file within the limitation period.

[50]However the claimant failed to provide any evidence to support his contention. Without that evidence there was no reasonable prospect of the claim being admitted as an exception to the time limit and therefore no reasonable prospect of the claim succeeding.

[51]The appellant failed to make any cogent written argument as to why it was not reasonably practicable for him to have brought the case in time. He failed to make any cogent argument at the preliminary hearing what his case was on this point, despite being repeatedly given an opportunity to do so. Despite the onus being on the claimant to show that it was not reasonably practicable to have presented the claim in time, he failed to direct the tribunal to specific examples of concealment. At paragraph 42 of my judgment of 27 March 2025 I stated that: “I did not find there to have been misrepresentation about relevant matters by the employer to the employee. That the respondents staff had formed a view that the employment contract would be terminated before communicating that to the claimant is inevitable. That the claimant did not have a right of appeal against the respondents’ decision is something that would have been obvious to him at the time of dismissal. The claimant provided no evidence of concealment of material which would have rendered it not reasonably feasible to bring the claim within time.”

[52]Accordingly I find that the claim had no reasonable prospect of success.

[53]Having found that the threshold criteria for making a costs order are met, I go on to consider whether to exercise my discretion to do so, including the claimant’s ability to pay any costs order.

[54]I take into account that the appellant is an unrepresented litigant in person. However I also take into account that he has wide experience of conduct of litigation in multiple fora and at the hearing of 7 March the claimant confirmed that he had conducted legal research.

[55]I also take into account that costs are compensatory, not punitive.

[56]This is the second occasion that the claimant has brought employment tribunal proceedings against these respondents arising out of the same set of facts. The earlier proceedings were ultimately withdrawn by the claimant without proceeding to a full merits hearing. I find that the respondents were entitled to consider this matter to be closed, at least so far as employment tribunal proceedings were concerned, unless it fell squarely into the reasons stated by the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 AER 945. There was no evidence to suggest that it did.

[57]The respondents have been put to considerable expense defending an unmeritorious claim brought by the claimant. They have acted reasonably in their defence of the claim, including putting the claimant on notice as early as January 2025 of their intention to seek costs and encouraging the claimant to obtain legal advice.

[58]In this case I find it is appropriate to exercise my discretion in favour of making a costs order. Quantum and ability to pay

[59]The claimant submits that he has recently become unemployed and is of limited means.

[60]The evidence he provided in support is limited. He has provided a basic table of income and expenditure, which suggests his expenditure is significantly higher than his income, which is consistent with him having become recently unemployed.

[61]By failing to attend the hearing he has failed to make himself available to answer questions on his financial situation.

[62]Although the evidence is limited, what little evidence he has provided suggests he is unemployed, and lives in rental accommodation.

[63]I find that the claimant is of limited means and I take this into account.

[64]The claimant contended that in view of his very limited means the tribunal should make no, or no substantial, costs order even if it would otherwise judge a substantial award to be appropriate.

[65]The respondents’ costs in this case stood at £33,000 in January 2025, and will no doubt have increased since, in preparing and conducting two hearings.

[66]The schedule of costs is particularised. The amount of legal work generated by the claimant’s approach to litigation is inevitably high. The respondents have reasonably tried to limit the volume of correspondence by acting proportionately during the proceedings. The respondents’ schedule of costs indicates work was proportionate and undertaken by those of an appropriate level of seniority.

[67]The claimant submits that the costs sought by the respondents are disproportionate. I reject the claimant’s submission entirely.

[68]The respondents seek an award of £10,000 which is less than one third of the actual sums incurred. Given the claimant is of limited means I reduce the costs order I would have otherwise made from the sum sought to a costs order of £3,300 which is ten per cent of the costs incurred by the respondents as of January 2025.

[69]Whilst the claimant is of limited means, he was not available for that to be explored. There is evidence that the claimant was employed until very recently prior to the hearing, he was initially successful in securing employment with the first respondent and has had other employment since then. He is of working age and has clearly succeeded in securing employment. Any assessment or consideration of means is not limited to the paying party’s means as at the date the order is made (as set out in Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT) and I find that there is a realistic prospect that he might at some point in the future be able to afford to pay the amount ordered. Preparation time order

[70]The claimant applied for a Preparation Time Order for time he says he reasonably spent dealing with the respondents’ unreasonable conduct.

[71]I find that application totally without merit. The time spent by the claimant in bringing a claim, and in his conduct of the claim, that has no reasonable prosect of succeeding was his decision and I find is no part attributable to the respondents. That the respondents did not choose to engage in settlement negotiations and sought to defend their position robustly given the history of the claim, the context of other litigation brought by the claimant and the fundamental weakness of the current claim is not surprising or unreasonable. The respondents were entitled to defend their position in light of a claim that was significantly out of time. They have done so reasonably and the threshold criteria for a preparation time order is not met. Approved by:

The Hearing

[1]The claimant has applied under rule 69 of the Employment Tribunal Procedure Rules 2024 for reconsideration of a tribunal judgment of 9 October. That judgment was for the claimant to pay £3,300 towards the respondents’ costs and a dismissal of the claimant’s application for a preparation time order. There is no reasonable prospect of the original decision being varied or revoked.

[2]The claimant notified the tribunal at 17:04 on the evening prior to the hearing that he did not intend to attend the hearing and asked the Tribunal to proceed to determine the matter on the basis of his written submissions and bundles.

[3]The tribunal made enquiries of the claimant on the morning of the hearing. He repeated his request that the tribunal should proceed to determine the respondents’ cost application, and his application for a preparation time order, on the basis of the written materials already submitted. He did not apply for an adjournment.

[4]The tribunal proceeded in the claimant’s absence in accordance with rule 47, applying the overrising objective to deal with a case fairly and justly, dealing with a case in a way that is proportionate to the complexity and importance of the issues and avoiding delay so far as compatible with proper consideration of the issues.

[5]The tribunal found that the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing the proceedings which were before it. The tribunal stated [11] that its inquiries, and jurisdiction, were limited to those matters before it. The tribunal took into account that the appellant was a litigant in person.

[6]The tribunal adequately explained its reasoning, including the calculation of the costs order and refusal of the application for a preparation time order, and the claimant has identified no arguable error of law in his application for reconsideration.

[7]The claimant’s application of 3 December 2025 for reconsideration of the judgment of 9 October is refused. There is no reasonable prospect of the original decision being varied or revoked. Approved by