Mr P Finlay v Merlin Travel Group Ltd: 8001287/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001287/2024

Venue Chambers in Aberdeen

Hearing 4 December 2025

Between

Mr Peter FinlayClaimant

Merlin Travel Group LtdRespondent

Before

Employment Judge J M Hendry

Date 29 January 2026

JUDGMENT

The Tribunal having considered the respondent’s application for expenses refuses same.

REASONS

[1]The claimant in his ET1 seeks findings that he was unfairly dismissed by the respondent. He claimed ‘worker status’ and also that he was an employee who had a claim for ‘automatically unfair dismissal’ because of whistleblowing disclosures he had made.

[2]The claims were resisted. The respondent’s position was that the claimant was a self-employed contractor and worked under a commercial contract and that he had full control over his own business operations and accordingly was not a worker or employee protected by the relevant whistleblowing legislation.

[3]The case proceeded to a case management hearing on 23 October 2024. The claimant was not legally represented. The discussion revolved around the disclosures made and when these were apparently made to the regulators CAA/ATOL. The issue of employee or worker status was also raised and it was agreed that a hearing would take place to hear evidence in relation to whether or not the claimant could demonstrate that he was either an employee or worker of the company.

[4]The hearing was due to take place on the 15 and 16 May. The claimant obtained representation from a Mr E Obi, an HR professional prior to the hearing. The claimant gave evidence on the first day and was subject to cross examination but did not attend on the second having indicated that he had become unwell and fallen. Photographic and other evidence was sought by the respondent’s agent and later provided.

[5]It appeared that the claimant had experienced a grand mal seizure. The hearing was postponed. Steps were taken to relist the hearing.

[6]Mr Obi wrote to the Tribunal on the 1 June: “… we wish to take this opportunity to reiterate the Claimant’s serious and ongoing health concerns. The Tribunal is already aware of the Claimant’s medical condition, and the recent diagnosis. These circumstances are not only materially relevant to the conduct of proceedings but also inform the Claimant’s capacity and engagement with the process. We respectfully ask that the Tribunal take the Claimant’s medical vulnerability into consideration when managing future hearings, communications, and expectations of participation.”

[7]On 9 June the claimant’s partner wrote on his behalf indicating that the proceedings were being withdrawn “due to ongoing health issues”. On 11 June a withdrawal Judgment was issued.

[8]In passing there was correspondence about the status of Mr Leslie who began writing on behalf of the claimant. He was a close friend of the claimant and acted as a lay representative/correspondent. It appears that about this point Mr Obi withdrew from acting. Expenses Application

[9]The application was advanced on the grounds that the claimant had acted unreasonably, vexatiously, abusively, and disruptively in bringing and conducting the claim, and that the claim had no reasonable prospects of success. The respondent asked the Tribunal to determine the matter on the papers to avoid further expense and referred to recent correspondence from Mr Leslie regarding the claimant’s health. The claimant agreed to this procedure. The Tribunal also invited the claimant to set out his current financial position which he did. The respondent’s agents also commented on the information provided.

[10]The application proceeds to set out submissions with reference to Rule 74 of the Employment Tribunal Procedure Rules 2024. Reference is made to the terms of Rule 74(2) and the circumstances in which costs orders may be made.

[11]The respondent then sets out various grounds for the application. In ground 1, they assert that the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably by persistently and knowingly mischaracterising his relationship with the respondent as that of an employee or worker despite undisputed documentary evidence that he and Mr Leslie contracted as a partnership under the “Travel Consultant Agreement” signed on 16 December 2023. Ms Donald refers extensively to the Bundle (for example at pages 44, 52, 68–69, 344, 361, 492, 257–274, and 74). She asserts that the claimant gave false, evasive, or misleading evidence at the hearing including denying documents he had himself supplied, denying familiarity with partnership arrangements, misstating his working hours and income, and seeking to conceal prior experience and knowledge of homeworking and ATOL-regulated arrangements.

[12]The respondent further alleged that the claimant fabricated or exaggerated claims about his required use of the respondent’s branded booking forms, and that examples given by him (notably a supposed customer “Jason O’Donnell”) could not be substantiated.

[13]The respondent also suggests that the claimant’s true motivation was resentment arising from a former homeworker successfully launching a travel product to Cuba. The email asserts that this explains the claimant’s conduct, including allegations made on social media and the initiation of these proceedings. The respondent also contends that the totality of the claimant’s conduct, a lack of candour, misleading evidence, unsupported allegations, and withdrawal after the commencement of cross-examination all goes someway to support a finding of unreasonable and vexatious conduct.

[14]Turning to ground 2 it is suggested that the claim had no reasonable prospects of success and was misconceived. The respondent notes that the terms of the Travel Consultant Agreement were undisputed, that no coherent protected disclosure was identified in the pleadings, that there was no evidence of any disclosure having come to the respondent before termination, and that causation would have presented an insurmountable barrier to the claimant.

[15]In relation to the discretionary nature of an award the respondent recognises that expenses are exceptional but submits that this is one of the rare cases where such an order is fair. It points to the expenses incurred, the alleged unreasonableness of the claim, and a prior warning issued to the claimant regarding reliance on the contractual indemnity. The respondent also notes the claimant’s representation by Mr Obi and submits that he is likely to have been advised of the weakness of his case.

[16]The document acknowledges claims made by Mr Leslie regarding the claimant’s financial circumstances, including asserted eligibility for legal aid and involvement on the minimal asset process bankruptcy, but submits that this does not preclude an award of expenses. The respondent provides a schedule of its expenses and invites the Tribunal to allow a four-week response period rather than the “28 working days” requested by Mr Leslie.

[17]Finally, Ms Donald reserved her client’s right to pursue recovery under the indemnity provisions of the Travel Consultant Agreement for any sums not recovered through the Tribunal.

[18]The claimant provided lengthy responses to the application finally summarising his position on the 26 August 2025. He reiterated that he could not be a third party agent as the respondent alleged. Discussion and Decision

[19]The rule governing such applications is Rule 76:- “When a costs order or a preparation time order may or shall be made: 76(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, 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) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success.”

[20]Although there have been changes to what could be described as the expenses regime over the years an award is still the exception rather than the rule. There are good policy grounds for this around ensuring that litigants deterred from making claims by the fear of incurring expenses if they lose.

[21]The terms of Rule 14(1) of the earlier 2001 rules used the same formulation as later versions of the rules namely that the trigger test was acting ‘vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived’.

[22]In most cases the unsuccessful party will not be ordered to pay the successful party’s costs; see McPherson v BNP Paribas (London Branch)

[2004] IRLR 558

per LJ Mummery at paragraphs 2 and 25:- “Although Employment Tribunals are under a duty to consider making an order for costs in the circumstances specified in Rule 14(1), in practice they do not normally make orders for costs against unsuccessful applicants. Their power to make costs orders is more restricted than the power of the ordinary courts under the Civil Procedure Rules; it has also for long been generally accepted that the costs regime in ordinary litigation does not fit the particular function and special procedures of Employment Tribunals. It is, therefore, not surprising that the Employment Tribunal Rules of Procedure do not replicate the general rule laid down in CPR Part 38.6(1) that a claimant who discontinues proceedings is liable for the costs which a defendant has incurred before notice of discontinuance was served on him. By discontinuing the claimant is treated by the CPR as conceding defeat or likely defeat. The Tribunal Rules of Procedure make provision for withdrawal of claims in Rule 15(2)(a), but the costs consequences are governed by the general power in Rule 14.”

[23]The then President of the EAT, Mr Justice Burton in Salinas v Bear Sterns International Holdings Inc UK/EAT/0596/04DM noted at paragraph 22.3 that “something special or exceptional is required” before a costs order would be made and, even if the necessary requirements of Rule 14 are established, there would still remain a discretion of the Tribunal to decide whether to award costs. The matter is one for the Tribunal’s discretion. In Benyon & Others v Scadden

[1999] IRLR 700

it was made clear that the discretion given to Tribunals and courts is not to be fettered.

[24]It should also be borne in mind that a litigant in person has to be judged less harshly than a professionally represented litigant. (See AQ Ltd v Holden

[2012] IRLR 648

). The claimant here did have representation at the hearing from Mr Gachuba who has I understand a law degree (although not in employment law) and has represented litigants before the Aberdeen Employment Tribunal. He does not seem to have authored any of the pleadings. He is not a practicing solicitor and appears to have been engaged to deal with the hearing itself. Expenses Application Ground One

[25]The Tribunal faces a number of difficulties when dealing with this application. The first and most obvious is that the claimant had not concluded his evidence and the Tribunal had not yet heard from the respondent’s witnesses or considered competing submissions. It is somewhat difficult in these circumstances to effectively prejudge the outcome of the case. The respondent’s position about the true legal relationship they had with the claimant is clear. There is no denying that the claimant had a number of serious legal hurdles to get over to demonstrate worker status.

[26]A repeated theme in the respondent’s submissions is that the documentation passing between the parties including the Travel Consultancy Agreement and more generally the setting up of the relationship was that of purely business to business excluding potential employee or worker status. The claimant’s position was that although he was called a Consultant in practice he had no real control of his work and that the respondent kept a tight grip on the manner in which the services were provided. He argued that contrary to the respondent’s position that was no right of substitution contained in the Agreement and he had been asked by Mr Butcher to carry out the work because of his long experience in the travel industry. I noted that somewhat oddly the respondent in their letter dated 8 May 2024, cancelling the agreement, wrote that the claimant had committed gross misconduct. These words appear in the Agreement as grounds to cancel it. These words, commonly used in employer/employee relationships do not sit well in a purely contractual business arrangement.

[27]Following the Supreme Court decision in Autoclenz Limited v Belcher and Others

[2011] UKSC 41

Tribunals are required to consider the reality of the situation rather than the written form of what the agreement is. Looking at the evidence I heard it suggested that the claimant was passed work by the respondent because of the previous relationship between the claimant and the respondent’s Mr Butcher. It was argued by the claimant that there was an element of personal service in that he was expected to deal with the work and was entrusted with it because of his long experience and relationship with the respondent. He was adamant that he could not use his own business name, payments would go directly to the respondent and that the way he did business was prescribed. The sort of difficulties faced by those wanting to ensure that there is no employee or worker status is not an easy one as the numerous legal authorities on this area of the law suggest. A recent case (Maritime & Coastal Agency v Groom) highlights some of the difficulties. In short, the documents described a volunteer arrangement but the Court of Appeal held that a contract came into effect every time he undertook an activity and was promised payment.

[28]It became clear during the claimant’s evidence that he appeared to have taken little or no legal advice about his situation and although he had done his own research, and referred to the well-known case of Pimlico Plumbers in correspondence, he did not understand the legal complexities involved especially in the light joint application by himself and his partner to join as Consultants. The agreement looked at broadly strongly suggested a business relationship different from that of employee. That, however, despite being a strong factor this has to be set against his position that both of Consultants were asked to do the work personally because of their experience and knowledge. I accept that the claimant might have been wise to have acknowledged some of these matters but he is not a lawyer and the law in this area is difficult. He did have some assistance from Mr Obi but my understanding is that he is also not a lawyer. My impression was that the claimant really didn’t understand the complex area of law he had ventured into. There were some matters that did not assist him in relation to his credibility such as his general defensiveness. He did not however, finish giving his evidence nor did I hear all the evidence from other witnesses or submissions to allow me to take a final view on the suggestion that he was deliberately misrepresenting his position for his own ends. I also cannot discount the fact that the cross-examination was properly robust and lengthy and the claimant began to appear increasingly unwell throughout that afternoon.

[29]Overall, I did not gain the strong impression that the claimant was deliberately misleading rather that his evidence was not well thought out due to an insufficient grasp of how the law would interact with the circumstances of his relationship with the respondent. I do not regard there is the material before me to conclude, as the respondent’s agents urge me to do, that the claimant was deliberately lying knowing that he could not be an employee/worker having entered into a Consultancy Agreement.

[30]Turning to the second ground, this is based on the premise that the claimant had no reasonable prospects of success. I do not wish to duplicate what I have said above. Looking at the matter broadly, if knowing now what I have heard in evidence and if I had been considering a strike out/deposit application on balance I would probably still not have struck out the claim because of the fact sensitive nature of proving or disproving worker status even if with the apparent inconsistencies rather I would have been likely to have made a Deposit Order. But that is not the situation I face. The claims proceeded without demur to a hearing on employee/worker status. The respondent did not seek a Strike Out earlier on the grounds that the claim had no reasonable prospects of success or a Deposit Order despite now submitting that the position on prospects was readily apparent. I note from the file that the claimant mentions correspondence from the respondent’s then agents that would suggest that at an early stage the respondent was considering a Strike Out/Deposit application but did not make one.

[31]In making observation I can quite understand that the respondent’s solicitor will have considered such an application but given various factors such as the fact sensitive nature of any such claim and the high bar for striking out that an open PH on worker status would be the best way to proceed. If the claimant was unable to demonstrate that he was either a worker or employee then no attention need be turned to the alleged disclosures made to a third party.

[32]This was a difficult and ‘messy’ case where the claimant was for the greater part a litigant in person. I also do not accept that given the background of the complex legal and factual issues that the claimant’s behaviour gives rise to the test that expenses should only be granted in exceptional circumstances be made. In my view the application does not succeed on either basis for the reasons set out above.

[33]It is cold comfort for the respondent but I would record that I can understand the respondent’s evident frustrations with the process and what they believe was the correct interpretation of the circumstances and documentation. They clearly vehemently opposed the claim and it would be fair to say that the additional complication of having to deal with a complex area of the law and liaise mostly with the claimant or his partner caused frustrations of its own. The correspondence from Ms Donald remained wholly professional although robust but the responses to that were often prepared by the claimant or on his behalf were often ill tempered. However, I have no doubt that the claimant became seriously unwell and that seems to be the catalyst for the withdrawal.