Mr S Sharma v Ensbury Gaff Ltd and Others: 6023192/2024
EMPLOYMENT TRIBUNALS
Case No 6023192/2024
Between
Mr S SharmaClaimant1. Ensbury Gaff Ltd 2. Thomas Charles Perry 3. Reem Rianna Cleo MohsenRespondent
Before
Employment Judge DawsonMr Piddington (instructed by counsel) for respondentDate 16 January 2026
JUDGMENT
[1]The claim of disability discrimination is dismissed upon withdrawal.[2]The claimant is ordered to pay the costs of the respondents as follows:a. the costs thrown away as a result of the adjournment of the hearing on 14 January 2026,b. the costs of defending the claim of disability discrimination,c. the costs thrown away as a result of the adjournment of the hearing on 8 October 2026. Case Number: 6023192/2024[3]The assessment of costs is adjourned to be decided by Employment Judge Dawson without a hearing and the following directions are given:a. the respondents must serve on the claimant and the tribunal a schedule of the costs they claim in respect of the above matters by 4 pm on 20 January 2026,b. The claimant must serve any submissions in respect of the amount of costs (including any evidence on which he relies in that respect) on the respondent and the tribunal by 4 pm on 11 February 2026
REASONS
[1]On 25 December 2024, the claim form was presented. It included, in box 8.1, a claim of disability discrimination. The claimant was represented by his current solicitors. The particulars of claim ran to 39 pages, were prolix and it was difficult to understand what claims were being presented.[2]On 13 February 2025, a notice of a preliminary hearing to take place by telephone on 8 October 2025 was sent to the parties.[3]On 3 March 2025, the claimant applied to amend his claim to add claims of victimisation and detriment under the Employment Rights Act 1996.[4]On 4 June 2025, the response was accepted. The tribunal directed that the claim form was unacceptably long and did not take account of the principles summarised by the EAT in C v D UKEAT/0132/19/RN. The parties were directed to submit an agreed list of the legal and factual issues two days before the case management hearing and take account of the principle explained in Hendricks v Commissioner of Police for the Metropolis, that attempts must be made by all concerned to keep discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations. The claimant was required to provide a disability impact statement.[5]On 7 October 2025, Regional Employment Judge Pirani directed as follows: This claim was issued in December 2024. Primarily, it is the responsibility of the claimant to draft a list of issues the tribunal has to determine. The list of issues so far provided is inadequate. The list must identify all the qualifying disclosures relied on, together with the associated tests, and why the claimant says they are satisfied. All allegations of detriment and/or discrimination must be identified with dates, what is said to have occurred and who is said to be responsible. It would also be helpful if the respondent could identify the extent to which the allegations are disputed. Judge Pirani would be grateful if the revised list of issues can be provided by no later than 4 PM today. Case Number: 6023192/2024[6]The claim did not comply with that direction but, instead, after 5 pm sent a list of issues which still, as will be set out below, did not set out all of the allegations of detriment and/ or discrimination including the dates and who was said to be responsible.[7]On 8th October, the regional employment judge adjourned the hearing due to be heard on that date. He did so partly because the list of issues had not been provided in accordance with his direction and also because the position had been compounded by the claimant’s failure to engage with the tribunal’s requirement to provide a disability impact statement.[8]The regional employment judge indicated that he was minded to list the case for an in-person hearing because managing such a large and unclear claim was best done in person rather than on the phone or by video. He requested dates of availability be provided.[9]On 15th October 2025 the claimant sent his dates of availability. They were 1st to 11th January 2026 and 27th to 31 January 2026.[10]On 12 December 2025 the parties were notified that the case had been listed for an in-person on 14 January 2026. The notice of hearing stated: Employment Judge Rayner provides the following orders for the preliminary hearing; The Claimant is referred to the Respondent’s application for strike out and in particular the Claimant’s failure to provide information as ordered in respect of his alleged disability of anxiety and depression. The Claimant must now provide both a disability impact statement and any medical records relied upon as soon as possible. If he fails to do so, there is a risk that his claim may be struck out at the hearing.[11]Thus, the claimant can, justifiably, say that the case was listed on a date when he was not available. However, neither the claimant nor his solicitors contacted the tribunal to inform it of that matter or, indeed, contacted the tribunal at all between then and 09:24 on the morning of the hearing.[12]At 09:24 on 14 January 2026 the claimant’s solicitors wrote to the tribunal explaining that the hearing had been listed on a date previously identified as unavailable for the claimant’s representative (my emphasis) and applied to convert the hearing to a video hearing. The email stated that the claimant’s representative was available to join via video link to address the respondent’s applications in any case management orders and that the claimant was not pursuing a claim for disability discrimination. It did not state why the claimant was not pursuing a claim of disability discrimination. It submitted that the matter could proceed by way of video hearing without further delay or the need for a full postponement. Case Number: 6023192/2024[13]At 10:02, Mr Hussain, the fee earner with conduct of the case, emailed the tribunal with a further version of the list of issues (version 4). However, this still did not provide the information which the tribunal needed because in respect of the allegations at paragraph 2.2, there were still no dates and no statement of who was responsible.[14]Initially, the case was called on in person. Mr Piddington and the two named individual respondents attended. I explained that I intended to hear the application to conduct the case by CVP, by CVP. That required Mr Piddington to return to his chambers because the facilities in the Southampton Employment Tribunal are such that only one hearing room has video facilities and that room was being used.[15]At around 11:15 AM the hearing commenced by video. The claimant was represented by a paralegal. He told me that he was only given the case at 09:40 and did not have much information. Mr Hussain, he said, was in another hearing and not in the office. I asked Mr Janjua whether he would be able to provide the tribunal with the information required in paragraph 2.2 of the list of issues and he said that he could not, he also indicated that he had not had a chance to read the list of issues. He told me there was nothing he could say other than what Mr Hussain had put in his email application. He told me that he did not know why the claimant had not attended at this hearing.[16]I rejected the application to convert the case to a CVP hearing for the following reasons:a. Both Regional Employment Judge Pirani and Employment Judge Rayner had taken a decision that this case would be best conducted in person, that was also my view having looked at the pleadings and the draft list of issues.b. Given that it was the claimant’s representative who was unavailable for the hearing, it would have been possible for the claimant to obtain alternative representation.c. Indeed, and further to the preceding subparagraph, there was no reason as far as I could tell, why Mr Janjua could not have been given the proper information required and attended at the tribunal in person.d. Converting the hearing to a video hearing would not assist the tribunal or, in fact, the parties because even if I converted the case to a video hearing, the claimant still could not tell the tribunal what information was needed so that the respondent could understand the case it had to meet. Nothing would be achieved by converting the hearing.e. The claimant had left it far too late to contact the tribunal given that he had been aware of the hearing since 12 December 2025.[17]In all the circumstances I considered that it was not in accordance with the overriding objective to convert the hearing to a video hearing. Case Number: 6023192/2024[18]In the circumstances, the case could not proceed and it was adjourned to a further in-person hearing for three hours.[19]The respondent applied for costs as follows:a. the costs thrown away as a result of the adjournment of the hearing on 14 January 2026,b. the costs of defending the claim of disability discrimination,c. the costs thrown away as a result of the adjournment of the hearing on 8 October 2025.[20]Mr Piddington invited me to deal with the assessment of the amount of costs on paper when the respondent had properly gathered its figures. The Law on Costs[21]The Employment Tribunal Procedural Rules 2024 provide as follows. 72 In this Part— “paying party” means a party liable to pay costs; “preparation time” means time spent by the receiving party (including by any of the receiving party's employees or advisers) in working on the case, except for time spent at any final hearing; “receiving party” means a party entitled to be paid costs. 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) …. 74 (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— Case Number: 6023192/2024 (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) …. 75 (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 a 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). 76 (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; (ii) in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual's attendance as a witness at a hearing; (d) an amount agreed between the paying party and the receiving party in respect of the receiving party's costs. Case Number: 6023192/2024 (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000. … 82 In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[22]It was held in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, [2012] IRLR 78 that "The ET's power to order costs is more sparingly exercised and is more circumscribed by the ET's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the ET costs orders are the exception rather than the rule. In most cases the ET does not make any order for costs."[23]Harvey on Industrial Relations summarises the position in relation to the general approach to costs as follows: [1046.03] Whether the origin of consideration of costs or a PTO is the tribunal's own initiative, or an application, the same three-stage process must be adopted in all cases. Firstly, the tribunal must make findings of fact about the paying party's conduct. The tribunal must consider whether, on those findings, one or more of the statutory thresholds in r 74 are met (for example, a finding that there was breach of a tribunal order, that the conduct of proceedings was unreasonable in a particular respect, or that the claim had no reasonable prospects of success). The tribunal will need to explain in its reasons which aspects of any conduct fulfilled which part of the r 74 test. Secondly, if the r 74 threshold has been met the tribunal will go on to consider whether to exercise its discretion to award costs or a PTO (see Ayoola v St Christopher's Fellowship UKEAT/0508/13 (6 June 2014, unreported) at [17]– [18]; Robinson v Hall Gregory Recruitment Ltd [2014] IRLR 761, EAT, at [15]). In doing so the tribunal must take account of all the relevant circumstances including, where appropriate, the paying party's ability to pay any costs order. Thirdly, and only when the first two stages have been completed, a tribunal may proceed to consider the amount of the Case Number: 6023192/2024 award payable and the form of any award, under SI 2024/1155 r 76 (formerly r 78 of the 2013 Tribunal Rules) (see Haydar v Pennine Acute NHS Trust UKEAT/0141/17 (12 December 2017, unreported), at [25]). [1046.04] It is not permissible for a tribunal to proceed from the first stage to the third stage described above without considering the second; that is, it must not assume that, because there are grounds for making an award, a costs order must therefore be made (Abaya v Leeds Teaching Hospital NHS Trust UKEAT/0258/16 (1 March 2017, unreported)). Likewise, it is not permissible for the tribunal to deal with stage two before addressing stage one, that is, deciding to make an award of costs before identifying the statutory ground giving rise to it. It is also wrong, moreover, for the tribunal to put the burden on the paying party to show why costs should not be awarded, especially before satisfying itself that there had been unreasonable conduct justifying an award under r 76 (Haydar v Pennine Acute NHS Trust UKEAT/0141/17 (12 December 2017, unreported), at [37]–[38]).[24]I adopt Harvey’s statement of the law in respect of the three-stage process which I must apply.
Conclusions
[25]Mr Janjua invited me not to determine the question of costs today because he had not been properly briefed as to the position. I refused that application on the basis that he had been instructed to attend on behalf of the claimant. The application in respect of costs (certainly in respect of those lost as a result of the adjournment today and those flowing from the withdrawal of the disability discrimination claim, but also those thrown away on 8 October 2025) flowed directly from matters in respect of which Mr Janjua should have been properly instructed. It was not in accordance with the overriding objective to adjourn the question of costs.[26]Mr Janjua made no representations as to the principle of costs. The costs thrown away because of the adjournment on14 January 2026[27]In my judgment the claimant’s behaviour was unreasonable in failing to contact the tribunal between the 12 December 2025 when this hearing was listed and 09:24 on 14 January 2026, to explain that his representative was unavailable. Moreover, the claimant was unreasonable in sending to the hearing, on his behalf, a representative who was not in a position to properly engage with the task which the tribunal needed to complete at the case management hearing. I make no personal criticism of Mr Janjua, but he clearly could not tell the tribunal what the claimant’s case was. Further, or alternatively, the claimant was unreasonable in not attending this hearing himself to explain what his case was. Case Number: 6023192/2024[28]The bottom line is that a hearing which was listed on an in-person basis, for three hours, for which the respondent had instructed counsel who had provided a written skeleton argument, could not proceed because of the claimant’s behaviour.[29]I am satisfied that the conduct meets the threshold in rule 74(2)(a).[30]In exercising my discretion within the second stage, Mr Janjua made no representations either as to the exercise of my discretion generally or the claimant’s means. Even if I were to assume that the claimant is impecunious, whilst that is a matter I would take into account at this stage, it would not persuade me that I should not make an order for costs in principle. The claimant has been given plenty of opportunities to put his house in order and I consider that it is appropriate to exercise my discretion to order him to pay the costs in this respect. The question of the claimant’s means can be considered again at the stage when I decide how much to award by way of costs. The costs incurred by bringing the disability discrimination claim[31]The claimant was directed to provide a disability impact statement on 4 June 2025. He ignored the tribunal’s direction. That was part of the reason why Regional Employment Judge Pirani adjourned the case on 8 October 2025, which should have been a reminder to the claimant to either provide a disability impact statement or, if he was not pursuing his claim, to withdraw it. He did neither. The claimant was directed by Employment Judge Rayner on 12 December 2025 to provide a disability impact statement and any medical records relied upon as soon as possible; again the claimant should either have complied with that direction or indicated he was no longer pursuing his claim. It was only at 09:24 on the morning of the hearing that the claimant, through his solicitors, simply stated that he was not pursuing a disability discrimination claim. No explanation was given as to why he had ticked box 8.1 to indicate that he was bringing such a claim or why he was no longer pursuing the claim. There is no doubt that the respondent has been put to cost and inconvenience in not only defending that aspect of the claim but also in chasing the claimant for his disability impact statement.[32]In my judgment simply withdrawing a claim is not unreasonable behaviour, tribunals should not adopt a practice which has the effect of deterring claimants from making sensible litigation decisions. The unreasonable behaviour in this case is pursuing a claim of disability discrimination where, on the evidence, the claimant showed no intention of serving evidence which showed that he was disabled. The claimant had three specific opportunities to serve a disability impact statement. He took none of them. Instead he ignored the directions of the tribunal until the day of the hearing when his disability claim might have been struck out and without explanation withdrew the claim. That behaviour was unreasonable.[33]In considering the exercise of my discretion, I consider it appropriate to order the claimant to pay the costs in this respect. I have not been asked to take his means into account, but again, I assume without deciding that he is impecunious. Taking that into account, I remain of the view that this alone does Case Number: 6023192/2024 not mean that costs should not be awarded in principle. I have been given no explanation as to why the claimant behaved in the way that he did. The respondents have been put to the inconvenience and expense in defending the claim and, in those circumstances, I exercise my discretion in favour of ordering the claimant to pay the costs of the respondent in defending the disability discrimination claim. The costs incurred as a result of the adjournment on 8 October 2025[34]In deciding whether the claimant’s behaviour was unreasonable in this respect, I must take account of the fact that it is not uncommon for a first case management hearing to be ineffective and it is not the usual practice to award costs in such circumstances.[35]However, it is a notable feature of this case that when the response was accepted, the claimant was informed that his claim form was unacceptably long and it was necessary for the parties to submit an agreed list of legal and factual issues two days before the hearing. As stated by Regional Employment Judge Pirani on 7 October 2025, primarily it is the responsibility of the claimant to draft a list of issues and the claimant failed to do that. He was given an opportunity to correct that failure on 7 October 2025 and he did not do so. He did not do so partly because he only returned the list of issues at 17:02 and partly because he still did not give the required particulars. Those failures were compounded (as stated by the Regional Employment Judge) by the claimant’s failure to provide a disability impact statement. In my judgment that behaviour did amount to unreasonable conduct of the proceedings.[36]Again, I must consider the exercise of my discretion. Again, it is relevant for me to remind myself that it is not particularly unusual for a first case management hearing to be ineffective. However, in this case the claimant was legally represented and had been told clearly what was required of him. No explanation is given for the matters which I have referred to above and I consider it is appropriate to exercise my discretion in favour of ordering the claimant to pay the respondent’s costs thrown away as a result of the adjournment on 8 October 2025. Again, I have assumed that the claimant is impecunious. The amount of costs[37]The amount of costs will be determined on paper, in accordance with the directions given above.