Mr P McAuley v The Law Society of Scotland and Scottish Legal Complaints Commission: 8001535/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001535/2024Venue GlasgowHearing 14, 15 and 16 October 2025
Between
Mr P McAuleyClaimantThe Law Society of Scotland and Scottish Legal Complaints CommissionRespondent
Before
Employment Judge M WhitcombeMs K Howard (instructed by Solicitor) for respondentDate 25 November 2025
JUDGMENT
The judgment of the tribunal was to dismiss the claim.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on the 25 September 2024. The claim was brought against the respondent and the Scottish Legal Complaints Commission (SLCC). The claimant indicated he was bringing a complaint of discrimination because of the protected characteristics of race and religion and belief. The claimant, in the paper apart to the claim, confirmed he was bringing complaints against both respondents under section 8 of the Protection from Harassment Act 1997 and sections 13, 19, 26 and 27 of the Equality Act 2010. He asserted he was a contract worker.[2]The claimant, in the paper apart to the claim form, made six “pleas in law”, four of which concerned the SLCC and two concerned the respondent. The claimant’s case concerned allegations that the respondents had treated him unlawfully by failing to follow the applicable policies and failing to respect his rights in relation to investigatory timescales.[3]The respondents entered a Response to the claim in which the allegations were denied and it was asserted the claim had been brought under the wrong section of the Equality Act.[4]A hearing took place on the 26 February 2025 following which a Judgment was issued deciding the pleaded case against the first and second respondent did not fall within section 41 of the Equality Act and therefore the Employment Tribunal had no jurisdiction under section 120 of the Equality Act to consider a complaint brought under Part 5 (“Work”) of that Act. Further, that the Employment Tribunal had no jurisdiction to consider a claim for breach of the Protection from Harassment Act 1997. The claim was dismissed in its entirety and the claimant’s application to have both responses struck out was refused.[5]The claimant made an application for reconsideration of the decision and the Employment Judge dealt with that matter in a letter of the 14 March 2025 (document 5). The Employment Judge decided to refuse the claimant’s application on all but one point. He considered that only one of the points made by the claimant had a reasonable prospect of satisfying the criterion of being in the interests of justice, and that was that as a result of the claimant’s own error and/or legal misunderstanding he failed to rely on a point which the first respondent had conceded, namely that the first respondent was a trade organisation for the purposes of section 57 of the Equality Act.[6]The claim against the first respondent was permitted to proceed on that basis, but the claim against the second respondent remained dismissed.[7]A case management preliminary hearing took place on the 1 July 2025. The Judge at that hearing decided (amongst other things):-• the final hearing would deal only with issues of liability;• to issue directions for the preparation of a file of documents for the hearing;• to confirm that if the claimant wished to apply for permission to amend the claim to add a complaint of indirect sex discrimination, then he must do so in writing, addressing the relevant legal principles on amendment, by no later than 15 July 2025. Further, if the claimant maintained that he had already brought such a claim, then he must by the same date confirm by highlighting and attaching the relevant documents –(a) the relevant passage in the claim form or any original attachment to it, or(b) the documents showing that the respondent consented to an amendment to that effect;• to list the case for a 3 day final hearing, before a full tribunal;• to clarify the claim was now brought under section 57(2)(d), 3(a) and 5(d) of the Equality Act;• to clarify the claimant relied on the following protected characteristics: (a) Race in the sense of Irish ethnicity; (b) Religion defined as “Roman Catholic Christian” and(c) two philosophical beliefs, being (i) that Roman Catholics of Irish descent are unfairly treated by judges in the courts and (ii) that people who graduate with a diploma in legal practice should be allowed to enrol as a solicitor without first completing a training contract and• to set out the details of the claim being brought by the claimant. This was set out by the Judge following considerable discussion with the parties. (These details are set out below.) Claims brought by the claimant[8]The claims being brought by the claimant are as set out in the Note issued following the hearing on the 1 July 2025. Direct discrimination (section 13 Equality Act 2010)[9]The alleged less favourable treatment by the respondent because of the protected characteristics of race and/or religion and/or philosophical belief is:-a. the respondent failed to wait until a 28 day time limit for an appeal to the Inner House of the Court of Session (CSIH) against the SLCC’s decision to refer had expired before opening an investigation into the claimant (section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007) andb. the respondent failed to wait for a different 28 day time limit derived from sections 4 and 47 of that Act to expire before opening an investigation into the claimant. Harassment (section 26 Equality Act 2010)[10]The alleged unwanted conduct related to the protected characteristics of race and/or religion and/or philosophical belief consisted of:-a. opening an investigation on 16 September 2024;b. suspending rather than abandoning that investigation when the claimant appealed (ultimately unsuccessfully) to the CSIH andc. Rachel Wood (the respondent’s Director of Regulation) complaining about the claimant to the Lord President in November or December 2024. Victimisation (section 27 Equality Act 2010)[11]The protected act was said to be informing the SLCC on the 11 September 2024 and the respondent on the 23 September 2024 of his intention to appeal to the CSIH.[12]The detrimental treatment consisted of:a. the respondent opening an investigation into the claimant when they did andb. suspending the investigation rather than abandoning it. Preliminary issues at the commencement of the final hearing First issue[13]The parties were directed, at the case management preliminary hearing on the 1 July 2025, to make every effort to agree a joint set of documents for use at the hearing. They were ordered to send each other the documents they intended to rely upon at the hearing, and the respondent agreed to prepare the file.[14]The claimant sent to the respondent his documents for inclusion in the file. The documents were page numbered, with an Index.[15]The respondent prepared the file of documents for the hearing and in doing so they inserted the claimant’s documents, in their entirety, in the way in which they had been prepared by the claimant. The respondent also included the Pleading and Tribunal correspondence and the respondent’s documents. The respondent provided an Index and page numbered these documents and also used numbered document dividers.[16]The claimant took exception to the fact numbered document dividers had not been added to his documents. He alleged the respondent had been “allowed” to do this and he had not, and that it discriminated against him and disadvantaged him.[17]The tribunal, in addressing this matter, noted there is no issue of allowing, or not allowing, the use of numbered document dividers: it is simply how the respondent prepared the documents. The claimant could have used numbered document dividers if he had wished to do so.[18]The tribunal could not agree there was any disadvantage to the claimant in circumstances where the documents without numbered document dividers were his documents, which he had prepared and sent to the respondent for inclusion in the file. The claimant’s documents included an Index and page numbers and therefore documents could easily be located.[19]The claimant asked to use his phone, which had a search function, to find documents he wished to refer to whilst giving his evidence. The respondent objected to this. The tribunal agreed the claimant could use his phone, but had to show the respondent’s representative what he was looking at.[20]The claimant, whilst giving his evidence, referred to the documents in the file without any difficulty. There was one occasion when he asked to use his phone and this was permitted. Second issue[21]The Employment Judge directed parties to the Note issued following the case management preliminary hearing on the 1 July 2025, and read out the issues to be determined in the claim brought by the claimant.[22]The claimant insisted there was also a complaint of indirect sex discrimination. The Employment Judge confirmed this had been dealt with at the hearing on the 1 July, and that it had been made clear to the claimant that if he wished to introduce this claim, he would have to make an application to amend. The claimant had not done so.[23]The claimant confirmed he now wished to make an application to amend the claim to include a complaint of indirect sex discrimination. The respondent objected to the application.[24]The tribunal retired to consider the application. The tribunal noted the claimant had been given very clear direction regarding making an application to amend, and a timescale for doing so, at the hearing on the 1 July. The claimant had not complied with those directions and had not made an application to amend. There was no explanation why the claimant had not done so. There was also no detail regarding the claim he wished to introduce.[25]The tribunal decided, having regard to the two points set out in the previous paragraph, and the fact this hearing would have to be postponed if the application was allowed, to refuse the application to amend.[26]The claimant, upon being told of the tribunal’s decision, immediately made an application for reconsideration. The claimant made no submission in support of that application: he merely stated he had a right to apply for reconsideration. The tribunal refused the application for reconsideration because it had no reasonable prospect of success. Third issue[27]The claimant had, shortly before the start of the hearing, emailed a large number of documents which he wished to have included in the productions. The respondent objected to these documents on the basis of relevance. The tribunal decided to allow the documents to be included. The claimant was also allowed to produce some further emails during his cross examination. Fourth issue[28]The Employment Judge informed the claimant he required to refer the tribunal to the documents he wished it to consider: this was not a process whereby we would read all of the documents produced regardless of whether they were referred to. The Judge also cautioned the claimant about assuming “judicial knowledge” about certain matters and that he should ensure all points to be considered were covered in his evidence. The Judge also advised the claimant that he was expected to conduct himself with respect for all involved in this process. Issues raised immediately following the conclusion of
The Hearing
[29]The claimant, shortly after the conclusion of the hearing, emailed the tribunal regarding the issue of the numbered document dividers and also to enquire why one of the members had taken notes during Ms Howard’s submission but not during his submission. A response was sent to the claimant confirming these matters would be addressed in this Judgment.[30]The issue of the numbered document dividers is dealt with above.[31]There is no requirement for the members of the tribunal to take notes during submissions. The members of the tribunal met at the conclusion of the hearing for deliberations and both members participated in the discussion, and demonstrated both a knowledge and understanding of the claimant’s submissions. The Hearing[32]The tribunal heard evidence from the claimant and Ms Rachel Wood, Executive Director of Regulation with the respondent. The tribunal had before it the file of documents produced by the parties and two folders of documents produced by the claimant.[33]The tribunal, on the basis of the evidence before it, made the following material findings of fact. Material findings of fact are those that are relevant to the issues to be determined by this tribunal.
Findings of fact
[34]The respondent is the professional body for solicitors in Scotland. It is a “trade organisation” for the purposes of section 57 Equality Act 2010.[35]The claimant graduated with an LLB in 2009, completed the Legal Diploma and completed a traineeship in 2013.[36]The claimant made an application to the respondent for a practising certificate in 2024. The claimant received a letter dated 12 August 2024 (main folder C31) from the Secretary to the Practising Certificate Sub-Committee attaching an extract of the Minute recording the sub-committee’s decision. The Minute noted the claimant had held a practising certificate from September 2014 to October 2017. The sub-committee decided the “achievement of the regulatory objectives would best be served by granting the applicant a practising certificate, but subject to conditions aimed at reducing any risk to clients which could arise from the applicant engaging in private practice without appropriate supervision, giving the comparatively restricted extent and nature of the applicant’s most recent work experience. The sub-committee determined to grant a practising certificate to the applicant subject to the condition that the holder of the certificate would not practise as a manager in a practice unit (as those terms are defined in the Society’s Practice Rules) for a period of 12 months following the date of issue of the certificate.”[37]The claimant was very unhappy with this decision and decided to approach an Advocate for advice regarding appealing the decision. The claimant was advised that he could not instruct an Advocate because he did not hold an unrestricted practising certificate. There then followed an exchange of correspondence which culminated in the claimant being given formal notice, by letter of the 20 August 2024 (main file C44), that Mr Dunlop, KC, Dean of the Faculty of Advocates and Mr Graham, KC, Chairman of Faculty Services Ltd intended to make a complaint to the SLCC. The purpose of the letter was to confirm the terms of the complaint they intended to make and to give the claimant an opportunity to respond.[38]The claimant was advised, by letter of the 29 August 2024 from the SLCC (main file C45) that a complaint from Mr Roddy Dunlop KC and Mr Tony Graham KC had been received. The letter went on to explain that certain checks were required in order to decide whether the complaint would be investigated. These checks were explained and the letter concluded by stating the SLCC planned to finalise their decision (on whether an investigation was required) after 5 September 2024.[39]The claimant was advised, by letter of the 10 September 2024 (main file C50) that the SLCC had made a decision regarding the eligibility of the complaint made by Mr Dunlop KC and Mr Graham KC (full details of that decision were attached). The letter went on to advise that the complaint had been referred to the Law Society of Scotland to investigate the eligible conduct issues of the complaint.[40]The claimant responded immediately to that letter to confirm his intention to appeal to the CSIH. The claimant had a period of 28 days to do so.[41]The claimant was also frustrated that the SLCC had not allowed a 28 day cooling off period before accepting the complaint.[42]The claimant was advised, by letter of the 16 September, from the Governance Support Team of the respondent (main file C65) that the SLCC had recently referred the complaint by Mr Dunlop KC and Mr Graham KC to the Society for investigation, and that it would soon be allocated to a Reporter to the Professional Conduct Sub-Committees (Reporter) so that they can carry out the investigation part of the process.[43]The respondent is required, under the terms of section 47 of the Legal Profession and Legal Aid (Scotland) Act 2007 (the 2007 Act) to investigate a conduct complaint when it is remitted to them.[44]Mr Michael Greenfield, Professional Conduct Manager, wrote to the claimant on the 20 September 2024 (main folder C70) noting the claimant had indicated his intention to appeal the decision of the SLCC to remit the complaint against him to the formal investigative process. He confirmed that in the circumstances, “we do not propose to take any substantive steps in the investigation of your complaint until either the days of appeal have expired, or until any appeal proceedings which may follow have been exhausted.”[45]Mr Greenfield continued to note the claimant had taken exception to the email sent to him on the 16 September 2024 (above) because it had been issued before the expiry of the time within which he could seek leave to appeal against the SLCC decision to remit the complaint to the respondent for investigation. Mr Greenfield noted the email had been sent as part of the standard process and that a similar communication was issued in all cases which are remitted to the respondent by the SLCC for investigation. “It does not signify the commencement of an investigation into the complaint, and its purpose is simply to confirm to parties that the Law Society has received the matter from the SLCC …”[46]Mr Greenfield wrote to the claimant again on the 17 October 2024 (main file C73) to confirm the SLCC had informed the Law Society that it had received an appeal by the claimant against the eligibility decision in relation to this matter. Mr Greenfield confirmed that in the circumstances, their file would be suspended pending the conclusion of the appeal process.[47]The respondent will always suspend their file in circumstances where there is an appeal in relation to the conduct element of a complaint. The respondent does not have power (statutory or otherwise) to abandon an investigation.[48]The claimant was refused leave to appeal to the CSIH, and he was refused leave to appeal further.[49]The claimant received a letter dated 17 February 2025 (small buff folder, pink tab) from Ms Anne Hunter, Reporter to the Professional Conduct committee. Ms Hunter confirmed the investigation of the complaint had been allocated to her and that as they had been advised his application for leave to appeal the SLCC’s decision had been refused, it was now appropriate to commence the investigation into the complaint.[50]There are currently four complaints against the claimant which are being investigated by the respondent. The claimant raised the same issues regarding the way in which these complaints had been dealt with in terms of the SLCC not allowing him a 28 day cooling off period and the respondent opening an investigation during the statutory appeal period.[51]The claimant relied on 12 named comparators in respect of the complaint of direct discrimination (small folder, yellow tab). The comparators had each brought a case against the SLCC regarding a decision taken by that organisation. The claimant was not aware of the protected characteristics of these comparators.[52]Mr Neil Stevenson, Chief Executive of SLCC, emailed Ms Rachel Wood on the 24 September 2024 (additional document produced by the claimant) noting concern at the “nature and tone of the correspondence ...” (from the claimant).[53]Mr Stevenson emailed Ms Wood again on the 19 November 2024 (additional document produced by the claimant) noting the situation had escalated, with a devastating allegation having been made by the claimant. Mr Stevenson concluded his email by stating “we are considering an approach to the Lord President, as ultimate regulator, since we are prevented from taking any actions”.[54]Ms Wood took no action regarding Mr Stevenson’s statement. She did not approach the Lord President in November/December 2024 to complain about the claimant.[55]The claimant is a Roman Catholic Christian, who described himself as being of mixed Irish/Scottish ethnicity. His mother’s grandparents were Irish and both his mother and father have mixed Irish/Scottish DNA. The claimant holds a British passport and has not ever applied to have an Irish passport.[56]The claimant believed that Roman Catholics of Irish descent are unfairly treated by judges in the courts. The claimant did not know if this belief was widely supported by academia or other legal bodies. He suggested that Catholics were not successful in bringing legal claims, and an unrepresented party had to be Protestant to win.[57]The claimant also believed that people who graduate with a diploma in legal practice should be allowed to enrol as a solicitor without first completing a training contract. The claimant accepted that the experience he had gained during his traineeship had been valuable, but not essential. He also accepted that the experience had made him better, but was not essential. He rejected the suggestion there was flexibility in the system and that the belief was purely a personal opinion. Credibility and notes on the evidence[58]The claimant’s case before this tribunal was that the SLCC did not allow a 28 day cooling off period before accepting the complaint. The claimant argued that notwithstanding this, the Law Society should have had regard to the 28 day cooling off period and should not have opened an investigation within that period and further, they should not have opened an investigation within the 28 day period for an appeal. The claimant suggested the reason why the respondent had not waited for these periods to expire before proceeding was because he had called the respondent “bigots”; they “had it in for [him]”; they “hated [him] and were burning with rage” and because they wanted to antagonise him, all because he was Catholic and because of the views he had expressed in the Ethigen case (a previous employment tribunal claim brought by the claimant). The claimant believed that most solicitors in Scotland would have read the report of the Ethigen case in the Scots Law Times.[59]The claimant insisted, during his evidence in chief, in detailing the three subsequent complaints against him and the procedural errors which he asserted had occurred, because he considered there had been a continuing course of conduct. All of these matters post-dated the claimant’s claim and are not referred to in this Judgment.[60]The claimant refused to answer many of the questions put to him in cross examination because he considered them to be points of law, or he simply stated he would address the point in submissions. This conduct meant the claimant denied himself an opportunity to explain why he did not agree with the respondent’s position. For example, it was put to the claimant that there was no restriction on the respondent’s ability to start an investigation. The claimant, rather than articulate why he disagreed with that suggestion, refused to answer because he considered that to be a point of law.[61]The claimant’s conduct during the course of the hearing was, at times, not appropriate and he was given two formal warnings by the Employment Judge (the first for calling the Judge a “misandrist bigot”, pointing at her and challenging her; the second for being argumentative and badgering the witness).[62]The tribunal found Ms Wood to be a credible and reliable witness. Ms Wood leads the respondent’s regulatory directorate which consists of five teams, including professional conduct. Ms Wood gave evidence regarding the regulatory framework and she also spoke to having only ever sent the claimant one email in mid-August 2024 in which she explained the appeal process and drew the claimant’s attention to the respondent’s Unacceptable Behaviour policy.[63]Ms Wood accepted she had received emails from Mr Stevenson (SLCC) regarding the claimant’s behaviour and that Mr Stevenson had referred to making an approach to the Lord President. The tribunal accepted Ms Wood’s evidence that that would be a matter for the SLCC and that the respondent had not joined in with any such approach (if one was made). The tribunal accepted Ms Wood’s evidence that she had not made an approach to the Lord President in November/December 2024 to complain about the claimant.[64]The tribunal also accepted Ms Wood’s evidence that the 2007 Act does not place any statutory time limits on the respondent and there was no reference in the 2007 Act (insofar as it relates to the respondent) to a 28 day cooling off period. Further, a cooling off period was not part of the respondent’s processes and there was no part of the respondent’s process that says it must wait 28 days before opening the complaint file. Claimant’s submissions[65]The claimant submitted he had done four protected acts and they were(i) he held the beliefs (as set out above) and these views were published in the Scots Law Times and Employment Tribunal database in June 2023/24;(ii) in June 2024, when applying to the respondent for a practising certificate, he stated he was concerned about anti-Catholic bigotry;(iii) he lodged an appeal at the CSIH in August 2024 in which he argued he had been discriminated against because of religion and sex and(iv) he appealed to the CSIH and the UKSC and repeated his accusations of discrimination.[66]The claimant complained that when the complaint was made by Mr Dunlop, KC, the claimant was not given 28 days’ notice by the SLCC and the respondent should not have contacted him during that time (that is, from the 20 August until the 18 September). Also, on the 10 September the SLCC sent him the eligibility report and he had 28 days to appeal it. The respondent contacted him on the 16 September to confirm a formal investigation would take place and he was not allowed 28 days to appeal.[67]The claimant produced the names of 12 comparators. The claimant submitted he had read all of the Judgments regarding the cases brought by the comparators and all of the comparators got 28 days cool off period. Further, there was no formal investigation during the statutory appeal period. (The claimant used the terms “cool off period” and “statutory appeal period” interchangeably). He also submitted they had been given 28 days to lodge a statutory appeal against the SLCC Eligibility report.[68]The claimant invited the tribunal to find he had been a credible witness: the facts were clear, strong and backed up by the documents and he had answered everything he possibly could. He considered Ms Wood had been fair in agreeing the formal investigation was stressful.[69]The claimant pointed to the ET3 where it was stated the respondent had not known his religion, but Ms Wood admitted she had known his religion. The claimant considered there could be no doubt she knew his religion because he had told her in an email in mid-August 2024, and he had stated on his application his concern regarding anti-Catholic bigotry and it would be reasonable to infer from this that he was Catholic.[70]The claimant invited the tribunal to find Ms Wood was not a credible witness. He described her as a jack of all trades and master of none and that she was not a Director as stated. He considered it alarming Ms Wood did not know of the 28 day cooling off period. She had described him as “intemperate” but could not give any examples of this. Further, Ms Wood acknowledged the respondent could appeal the decision of the SLCC to refer a complaint, but then denied the purpose of the 28 day period was dual purpose. She had misquoted the Act by using the term “send” rather than “remit”. It was incredible she had just ignored Mr Stevenson’s statement of approaching the Lord President. Overall the claimant considered Ms Wood had not known what was going on.[71]The claimant read out the relevant sections of the Equality Act and the Legal Profession and Legal Aid (Scotland) Act 2007. The claimant submitted the respondent was conducting a “witch-hunt” and that the purpose of the SLCC sending the complaint to the respondent was to give the respondent an opportunity to appeal: it was not for them to start an investigation.[72]The claimant produced a large volume of case law and proceeded to refer the tribunal to selected extracts from each case until the time for his submission (1pm) was exhausted.[73]The claimant was given an opportunity to respond to the respondent’s submissions. The claimant’s response noted that in terms of the issue of ethnicity, the respondent could have asked for documents such as DNA certificates. The claimant accepted Employment Judge O’Donnell was “probably” of Irish ethnicity, but he would be “astonished” if he was a Catholic. The claimant conceded his comparator Mr Malone was not a comparator, but he had provided a link to the cases of the other comparators. Respondent’s submission[74]Ms Howard confirmed the respondent had accepted the claimant’s religion was Roman Catholic Christian.[75]Ms Howard referred to section 10 Equality Act and submitted the burden was on the claimant to prove Irish ethnicity. She noted the claimant had stated he considered himself to be British: he held a British passport and did not want an Irish passport: this undermined his claim of ethnicity. He sought to rely on his surname “McAuley” but Ms Howard submitted this name also had Scottish roots. The claimant had not produced any documents in support of this characteristic and there had been no evidence, for example, that he spoke the Irish language or had an interest in Irish culture. The claimant had, in his evidence, made reference to his father’s DNA being 60% Irish; accordingly, the claimant’s DNA (if tested) would be lower. For all of these reasons, Ms Howard invited the tribunal to find the claimant did not have Irish ethnicity.[76]Ms Howard, in relation to the beliefs held by the claimant, referred to the case of Grainger plc v Nicholson 2010 ICR 360. She submitted the burden was on the claimant and that he had failed to establish these were genuinely held beliefs or that they met the threshold for protection. In relation to the first belief that Roman Catholics of Irish descent are unfairly treated by judges in the courts, this did not meet the Grainger criteria. The claimant’s evidence undermined it being a genuinely held belief because, when asked in cross examination which Judges and in which Courts he was referring to, he had only been able to name one Employment Judge. He did not know the religion of that Judge and said it was not relevant. The claimant did not know if the view was supported by any academic studies and, it was submitted, conspiracy theories about institutions was insufficient for a philosophical belief. Further, the belief was a personal grievance arising from recent events and not a coherent and serious view. The belief lacked consistency and support and was not part of a broader belief system. Lastly, the belief of systemic judicial bias was not supported by any evidence. Ms Howard submitted the belief was a personal belief/grievance and that it lacked coherence and structure and not was not worthy of belief in society.[77]The second belief was that people who graduate with a diploma in legal practice should be allowed to enrol as a solicitor without first completing a training contract. Ms Howard submitted this did not satisfy the Grainger test. The claimant had completed a traineeship and accepted it had been valuable, a privilege and had improved him. That evidence was inconsistent with his belief. The claimant had not challenged the requirement for a traineeship and that undermined the seriousness of the belief. Further, it appeared to be a personal preference. The claimant had been unaware of alternative pathways that did not require a traineeship and therefore the belief was not based on an informed understanding. There was a lack of foundation, coherence and structure in the belief.[78]Ms Howard, on the basis of these submissions, invited the tribunal to find the claimant’s beliefs were not philosophical beliefs and therefore not protected by the Equality Act.[79]Ms Howards submitted that, with regards to the claim of direct discrimination, the factual allegations were unfounded and she invited the tribunal to prefer the evidence of Ms Wood. Further, any less favourable treatment was attributable to the SLCC, not the respondent. There was no reference to a 28 day time limit in sections 4 or 47 of the Legal Profession and Legal Aid (Scotland) Act 2007.[80]Ms Howard noted the claimant had referred to section 21 of that Act, but that provision concerned the SLCC: it did not impose any time limit on the respondent commencing an investigation. There was no concept of a 28 day cooling off period in the respondent’s procedures. It was submitted the claimant had failed to identify any basis for alleging this.[81]Ms Howard submitted the comparators relied upon by the claimant were not comparators for the purposes of direct discrimination because there was no evidence regarding their protected characteristics. The comparators had brought cases against the SLCC and no details had been provided of these cases: only the case reference had been provided.[82]Ms Howard further submitted that even if there had been less favourable treatment by the respondent, the claimant had failed to establish any link between that treatment and his protected characteristic/s. The claimant had, in his evidence, only referred to religion and he refused to answer questions regarding this in cross examination. He had been evasive and the tribunal should treat his evidence with caution. In any event the respondent had not been aware of the claimant’s protected characteristic/s at the time of this. The phrase “anti-Catholic bigotry” was not indicative of the claimant’s religion, and he had not produced his CV. There was no evidence that the protected characteristic/s were the reason for the treatment and the tribunal was invited to dismiss the claim.[83]Ms Howard also invited the tribunal to dismiss the claim of harassment because it failed to satisfy the legal test. Ms Wood had not made a complaint to the Lord President. The claimant relied on emails exchanged between Ms Wood and Mr Stevenson, but Mr Stevenson is not affiliated to the Law Society and Ms Wood is not responsible or liable for his actions.[84]The respondent has a statutory obligation to open an investigation. Suspending that investigation if there is an appeal is standard practice and there was no evidence the claimant was treated differently.[85]The claimant sought to argue that the respondent had no obligation to investigate until the SLCC process was exhausted (section 47 of the Legal Profession etc Act). The claimant also argued that the term “remitted” required some form of resolution before the respondent investigated. Ms Howard invited the tribunal to prefer Ms Wood’s evidence regarding these matters.[86]Ms Howard submitted there was no evidence the conduct was unwanted or related to the protected characteristics relied upon. The claimant declined to answer questions regarding these matters because he insisted they were “points of law”. In the absence of any evidence, the claim must fail.[87]Ms Howard invited the tribunal to dismiss the complaint of victimisation because, firstly, the claimant had not done a protected act. He relied on an email of the 10 September 2024 which had been sent to the SLCC but not to the respondent, and the claimant had accepted this. In any event, that email did not disclose any reference to discrimination. It was not a protected act. The claimant also relied on an email dated 23 September 2024. The claimant refused to take the tribunal to this email when asked to do so. There was an absence of evidence that this email existed and was sent/received by the respondent and there was no evidence regarding the content of the alleged email: in those circumstances it could not constitute a protected act.[88]Ms Howard submitted that in any event, even if there had been a protected act, the opening and suspension of an investigation were procedural steps and not detrimental. In any event there was no evidence of a causal link between detriment and the protected act.[89]Ms Howard noted the claimant had refused to be directed to the Note issued following the preliminary hearing on the 1st July 2025. This had undermined the clarity of issues and had been compounded by the fact the claimant refused to answer many questions because he considered them to be a point of law. So, for example, when asked to clarify the protected act relied upon, he refused to answer. The claimant’s approach had left the tribunal with an absence of factual basis for the claim. Discussion and decision[90]The case against the respondent is brought under the terms of section 57 of the Equality Act. The respondent accepted it was a trade organisation.[91]The claimant relied on section 57(2)(d) of the Equality Act, which provides that a trade organisation must not discriminate against a member by subjecting the member to any other detriment. Section 57(3)(a) provides that a trade organisation must not, in relation to membership of it, harass a member and section 57(5)(d) provides that a trade organisation must not victimise a member by subjecting the member to any other detriment. Protected characteristics[92]The characteristics protected by the Equality Act are set out in section 1 of that Act. The claimant relied on the protected characteristics of race (section 9 Equality Act) which includes ethnicity; religion (section 10 Equality Act) and belief (section 10 Equality Act).[93]The respondent conceded the issue of religion and accordingly it was accepted the claimant has this protected characteristic: he is a Roman Catholic Christian.[94]The respondent disputed the claimant held the protected characteristic of race (Irish ethnicity). The tribunal, in considering this issue had regard to the evidence given by the claimant. Mr McAuley told the tribunal that his mother’s grandparents had been Irish, and that his mother and father had mixed Irish/Scottish DNA. He considered, on balance of probabilities, his surname demonstrated Irish ethnicity and that anyone looking at him would know he was obviously of Irish ethnicity.[95]The tribunal did not doubt the claimant’s evidence regarding his parents’ DNA, but he did not produce his own DNA test results. Further, he told the tribunal that he considered himself to be British, he held a British passport and did not want an Irish passport. There was no evidence to demonstrate he spoke the Irish language or participated in Irish cultural events.[96]The burden is on the claimant to show he has the protected characteristic. The tribunal concluded, on the basis of the evidence before it, that the claimant had not discharged that burden and in fact part of his evidence undermined a finding of Irish ethnicity.[97]The tribunal next considered the claimant’s beliefs and whether they were philosophical beliefs. We were referred to the case of Grainger plc v Nicholson 2010 ICR 360 where the EAT provided important guidance on the meaning and ambit of philosophical belief and set out the basic criteria that must be met in order for a belief to be protected under section 10 Equality Act. These criteria are now also set out in the EHRC Employment Code. A belief can only qualify for protection if it:• is genuinely held;• is not simply an opinion or viewpoint based on the present state of information available;• concerns a weighty and substantial aspect of human life and behaviour;• attains a certain level of cogency, seriousness, cohesion and importance and• is worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.[98]The claimant’s first belief is that Roman Catholics of Irish descent are unfairly treated by judges in the courts. The tribunal did not doubt the claimant held that view, but we concluded it was simply an opinion based on his experience in the Courts. The claimant brought forward no evidence to support his belief: he was asked which Courts and which Judges he was talking about, and could only name one Employment Judge whom he believed had treated him unfairly. The claimant did subsequently name the Dean of the Faculty, asserting he had used a derogatory term for Catholics (main folder C182 – 193).[99]The alleged unfair treatment of a sector of society because of their religion would be a weighty, serious and important matter, however the claimant did not refer the tribunal to any academic studies regarding this matter, or to any research into this matter. There was nothing to suggest the bald assertion made by the claimant attained a certain level of cogency and there was nothing to suggest the bald assertion, without more, was worthy of respect in a democratic society. The tribunal concluded for these reasons that the claimant’s belief had not satisfied the criteria set out in the Grainger case and, for that reason, was not a philosophical belief.[100]The claimant’s second belief was that people who graduate with a diploma in legal practice should be allowed to enrol as a solicitor without first completing a training contract. The claimant’s evidence regarding his own traineeship undermined his assertion that this was a genuinely held belief. The claimant had not objected at the time to doing a traineeship; he found the experience gained during the traineeship valuable; he described it as a “privilege” to do it and that the experience had made him better.[101]The claimant made reference to making comments in a consultation exercise regarding traineeships, but there was no certainty what this consultation exercise had been. Further, the claimant appeared not to know there were other pathways into the profession which meant no traineeship had to be done. The traineeship was part of the classic route into the profession.[102]The claimant did not produce or refer to any research into this matter and did not demonstrate that his belief had achieved a level of seriousness and importance. The tribunal concluded, for all of these reasons, that the belief was the claimant’s personal view and not a philosophical belief.[103]The tribunal decided the claimant had the protected characteristic of religion. He did not have the protected characteristic of race and his beliefs did not amount to philosophical beliefs.[104]The tribunal next asked what knowledge the respondent had of the claimant’s religion. The claimant relied on two points to support his argument that the respondent knew of his religion, and they were(i) that on the application form for a practising certificate he had made a statement that he was concerned about anti-Catholic bigotry and(ii) he had referred to his religion in an email to Ms Wood in mid- August 2024.[105]There was no dispute regarding the fact the claimant had made the statement (above) on his application for a practising certificate. The tribunal also accepted Ms Wood’s evidence that she had not known of the claimant’s religion when all of this started but, in the claimant’s response to the email she sent to him, he had informed her he was Catholic. Ms Wood agreed that was early/mid-August 2024.[106]The tribunal considered the key point was whether the person/s who took the decisions about which the claimant complained, knew of his religion. There was no clarity regarding this point. The respondent invited the tribunal to find the respondent had no knowledge of the claimant’s religion. This was not a submission we could accept in circumstances where, at the very least, Ms Wood did know of the claimant’s religion. The tribunal, based on the evidence before it, inferred the respondent did know of the claimant’s religion at the time of these events. Direct discrimination[107]The tribunal had regard to the terms of section 13 Equality Act which provides that a person discriminates against another if, because of a protected characteristic, they treat the person less favourably than they treat or would treat others.[108]We also had regard to the terms of section 23 Equality Act which provides that on a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.[109]These sections make clear that in a complaint of direct discrimination the claimant must have been treated less favourably than a comparator who was in the same, or not materially different, circumstances to the claimant. Further, the comparator must be someone without the claimant’s protected characteristics.[110]The first issue for the tribunal to determine is whether the claimant was treated less favourably than a comparator was or would have been. First alleged act of less favourable treatment[111]The first alleged act of less favourable treatment was that the respondent failed to wait until a 28 day time limit for an appeal to the Inner House of the Court of Session (CSIH) against the SLCC’s decision to refer had expired before opening an investigation into the claimant (section 21 of the 2007 Act).[112]The claimant referred to section 21 of the 2007 Act which is in a section of the Act dealing with the Scottish Legal Complaints Commission and section 21 itself is entitled “Appeal against Commission decisions”. The section goes on to provide that any person mentioned in subsection (2) may, with the leave of the court, appeal against any decision of the Commission under the preceding sections of this Part as respects a complaint on any ground set out in subsection (4). The persons who may appeal include the complainer, the practitioner to whom the complaint relates and the relevant professional organisation. The appeal must be made before the expiry of the period of 28 days beginning with the day on which notice of the decision was given to the complainer and the practitioner. This section of the Act clearly relates to the SLCC and not the respondent.[113]The claimant was notified by email of the 10 September 2024 from SLCC that they had made a decision regarding the eligibility of the complaint from Mr Dunlop, KC, and Mr Graham, KC, and that the complaint had been referred to the respondent. The email confirmed that if the claimant wished to challenge any of the decisions detailed in the report, he had the right of appeal to the CSIH and that the appeal must be lodged within 28 days. The claimant responded to this email on the same date, confirming his intention to appeal against the SLCC decision to refer the complaint to the respondent for investigation.[114]The claimant asserted the respondent had to wait until the end of the 28 day period for him to appeal, before opening an investigation. This assertion was based on the argument that preparing for an appeal to the CSIH was stressful (the claimant compared it to preparing for an exam) and that he should have been “left in peace” to prepare for the appeal.[115]The tribunal, in considering this allegation noted there was no dispute regarding the fact that within the 28 day period for appeal, the respondent notified the claimant by email of the 16 September 2024, that the complaint had been referred for investigation and that a Reporter would soon be allocated to carry out the investigation. The tribunal accepted the respondent did not wait until the 28 day time limit for the claimant to appeal the SLCC decision had expired before opening the investigation.[116]The tribunal next considered whether the claimant had been treated less favourably in this respect than the comparators upon which he relied. The claimant produced a list of 12 comparators and sought to argue these were cases where there was no Law Society investigation in the 28 day appeal period. The claimant did not provide details of the comparators’ cases, but did provide a link to the case reports. The tribunal noted the comparators had all brought appeals against a decision of the SLCC, and the case reports dealt with that matter. The case reports did not refer to an investigation by the respondent and did not support the claimant’s point that the respondent had not opened an investigation during the 28 day period.[117]The tribunal, in addition to this, noted a comparator must be someone who does not have the claimant’s protected characteristic/s. The claimant did not know whether the 12 comparators were people without his protected characteristic/s. The claimant’s assumption about the protected characteristics based on the names of the comparators regarding was not sufficient.[118]The tribunal concluded the comparators relied upon by the claimant were not appropriate comparators because there was no evidence to suggest they had been treated any differently to the claimant and there was no evidence the comparators did not have the protected characteristic of the claimant.[119]The tribunal considered there was support for the conclusion the claimant was not treated less favourably having regard to(a) the fact the claimant did not refer the tribunal to any relevant statutory provisions applicable to the respondent in support of his assertion;(b) the tribunal accepted the evidence of Ms Wood that no statutory time limits are placed on the respondent under the 2007 Act;(c) there was no requirement on the respondent to wait until a 28 day time limit for an appeal to the CSIH against the SLCC’s decision to refer had expired before opening an investigation into the claimant and therefore there had been no “failure” in respect of this;(d) the respondent is required, in terms of the 2007 Act, to investigate a complaint remitted to it by the SLCC and(e) in an email sent by Mr Michael Greenfield, Professional Conduct Manager, to the claimant on the 20 September 2024, he referred to the email of the 16 September (advising the claimant the SLCC had referred a complaint and that a Reporter would be appointed) as being sent as part of the standard process and that “a similar communication is issued in all cases which are remitted to the Law Society by the SLCC for investigation”.[120]The claimant, in addition to the above points, argued that the purpose of the SLCC referring the complaint to the respondent was to give them an opportunity to appeal their decision and that no investigation should start until the time limit for an appeal had been exhausted. There was no dispute regarding the fact that the respondent has, under section 21 of the 2007 Act, a right to appeal against an SLCC decision. The tribunal could not however accept the claimant’s submission that the purpose of the referral of the complaint from the SLCC to the respondent was only for the purposes of an appeal within the 28 time limit. We could not accept the submission because the terms of the 2007 Act are clear: the SLCC must, in terms of section 6 of that Act, remit the complaint to the relevant professional organisation to deal with (in this case, the respondent) and in terms of section 47 of that Act, the respondent must investigate a conduct complaint remitted to them. There was nothing in the Act to support the claimant’s submission.[121]The tribunal, having had regard to all of the points set out above, concluded the claimant had not shown he was treated less favourably by the respondent than others were or would have been. We decided, for this reason, to dismiss this aspect of the complaint. Second alleged act of less favourable treatment[122]We next moved on to consider the second alleged act of less favourable treatment and that was that the respondent failed to wait for a different 28 day time limit derived from sections 4 and 47 of that Act to expire before opening an investigation into the claimant.[123]Section 4 of the 2007 Act relates to the SLCC and deals with complaints not made timeously or made prematurely and section 47 provides that where a conduct complaint is remitted to a relevant professional organisation (in this case the Law Society of Scotland), the organisation must … investigate it.[124]The claimant’s complaint was that the SLCC should have allowed a 28 day cooling off period before accepting the complaint, but did not do so: notwithstanding this, the respondent should have respected a 28 day cooling off period before commencing an investigation. The tribunal, in considering this complaint, noted that the issue of whether the SLCC should have allowed a 28 day cooling off period in the claimant’s case, is not one for determination by this tribunal. We accepted the SLCC did not give the claimant a 28 day cooling off period (main folder C52, and the SLCC Eligibility Report where reference was made to 28 days usually being allowed, and where it was stated “although the solicitor wasn’t given the chance to deal with this complaint, we’ve decided there are exceptional circumstances”.[125]The claimant, in support of his position, relied on sections 4 and 47 of the 2007 Act. Those sections, as stated above, do not refer to a 28 day time limit. The claimant was cross-examined about the alleged less favourable treatment but he refused to answer the questions, responding instead that either he would deal with the matter in submissions or that he was being asked about a point of law and was “not here to answer that”.[126]The tribunal accepted that the respondent did not wait for a 28 day cooling off period (which is part of the SLCC procedure) to expire before opening an investigation. We continued to consider the treatment of the comparators relied upon by the claimant.[127]The claimant relied on the same 12 comparators. The tribunal did not consider these comparators to be appropriate because they were not in the same or similar circumstances as the claimant. We say that because the cases (and the reports) concern the actions/failures of the SLCC and do not concern whether the respondent should wait 28 days before opening an investigation. Furthermore, the claimant was unaware of the protected characteristics of the comparators.[128]The tribunal considered there was support for the conclusion the claimant was not treated less favourably in this respect based on the evidence of Ms Wood regarding this matter, which the tribunal accepted and found as a matter of fact that there are no statutory time limits applicable to the respondent under the 2007 Act; further, there is no reference to a 28 day cooling off period in the 2007 Act and the concept of a cooling off period is not part of the respondent’s processes. The tribunal, having had regard to Ms Wood’s evidence, concluded a cooling off period is not part of the respondent’s processes and there is no requirement for the respondent to observe the cooling off period which is part of the SLCC process: accordingly there was no failure in respect of this matter.[129]The tribunal concluded for the above reasons, that the claimant had not shown he was treated less favourably by the respondent than others were or would have been. We decided to dismiss this aspect of the complaint for this reason.[130]The tribunal dismissed the complaint of direct discrimination for these reasons. Harassment[131]The tribunal firstly had regard to the terms of section 26 Equality Act which provides that a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Section 26(4) provides that in deciding whether conduct has the effect referred to, each of the following must be taken into account:(i) the perception of the person;(ii) the other circumstances of the case and(iii) whether it is reasonable for the conduct to have that effect.[132]There are three essential elements of a harassment claim and they are:• unwanted conduct;• that has the proscribed purpose or effect and• which relates to a relevant protected characteristic.[133]The tribunal turned to address each of these elements. We started by noting the conduct complained of by the claimant:-(a) the opening of an investigation on 16 September 2024;(b) suspending rather than abandoning that investigation when the claimant appealed (ultimately unsuccessfully) to the CSIH and(c) Rachel Wood (the respondent’s Director of Regulation) complaining about the claimant to the Lord President in November or December 2024.[134]The first issue for the tribunal to determine is whether the conduct alleged by the claimant occurred and if so, whether it was unwanted conduct. We noted that the Equality and Human Rights Commission’s Code of Practice on Employment states that unwanted conduct can include a wide range of behaviour, including spoken or written words or abuse, actions or failures to act.[135]There was no dispute regarding the fact the respondent opened an investigation on the 16 September 2024: this was confirmed in their letter to the claimant on that date (main file C65). We next asked whether this was conduct which was unwanted by the claimant, and we accepted it was conduct which was unwanted by the claimant. We say that because it was clear from the arguments presented by the claimant in this case that he had not wanted the respondent to open their investigation during the time limit for appealing the decision of the SLCC to remit the complaint to the respondent.[136]There was also no dispute regarding the fact the respondent did suspend the investigation when the claimant appealed to the CSIH (main file C73) and did not abandon it. We accepted this was conduct which was unwanted by the claimant.[137]The third act alleged by the claimant was that Ms Wood complained about the claimant to the Lord President in November/December 2024. The claimant sought to argue that because Mr Stevenson (SLCC) had emailed Ms Wood on the 19 November 2024 and stated “We are also considering an approach to the Lord President, as ultimate regulator, since we are prevented from taking any actions” this showed a conspiracy and that some form of group had been formed to complain to the Lord President. The claimant, in cross examination, accepted he had, based on that email, made a presumption about Ms Wood complaining to the Lord President.[138]The tribunal preferred Ms Wood’s evidence regarding this matter and we found as a matter of fact that Ms Wood did not complain about the claimant to the Lord President in November/ December 2024. The tribunal concluded, for this reason, that the unwanted conduct alleged by the claimant did not occur.[139]The tribunal next considered the second element set out above, and that was whether the conduct had the proscribed purpose or effect. The tribunal acknowledged the claimant’s argument that opening an investigation during the statutory appeal period was stressful because the focus at that time was on preparing for an appeal and the claimant should have been left to do this without distraction.[140]The tribunal could not accept that the opening of the investigation was intended to have the proscribed effect. We say that because section 47 of the 2007 Act makes clear that where a conduct complaint is remitted to the respondent it “must .. investigate it”. The respondent does not have an option: it must investigate.[141]The tribunal considered whether the opening of the investigation had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The claimant, in his evidence, did not suggest the opening of the investigation had had the proscribed effect: there was no evidence to allow the tribunal to understand why the claimant considered an intimidating (etc) environment had been created. The claimant’s sole focus was on the stress of preparing for an appeal and his feeling that he should have been left in peace to do this.[142]The tribunal, in addition to this, also noted that whilst the investigation was opened, no action took place in respect of the investigation until a Reporter was appointed some time later once the appeal had been unsuccessful.[143]The tribunal must take into account the claimant’s perception of the conduct. We have made reference to this above, where we noted the claimant considered the respondent’s actions created a stressful environment. We must also have regard to the other circumstances and we noted these as being the fact the respondent is required to open an investigation when a complaint is remitted to it by the SLCC. Further, the notification given to the claimant to inform him that an investigation had been opened was part of the standard procedure. The tribunal must also consider whether it would be reasonable for the conduct to have that effect, and we concluded that it would not be reasonable. We say that because the respondent is obliged to comply with the statutory duty placed upon it to open an investigation. We concluded, having had regard to all of these points, that the unwanted conduct did not have the proscribed purpose or effect.[144]We next considered whether the suspension of the investigation rather than abandoning the investigation had the proscribed purpose or effect. The tribunal noted the claimant gave no evidence why he considered a suspension of the investigation rather than abandoning it created a hostile (etc) environment. The claimant’s position appeared to be no more than that was what he would have preferred. The tribunal, given the lack of evidence, concluded the suspension of the investigation rather than abandoning the investigation did not have the proscribed purpose or effect.[145]We should state that notwithstanding our above conclusion (regarding proscribed purpose or effect) we did go on to consider whether the unwanted conduct related to a protected characteristic (religion) of the claimant. We asked whether the opening of an investigation by the respondent was related to the religion of the claimant. The claimant’s position was that the respondent knew of his religion and “hated [him] and were burning with rage..” The claimant essentially relied on the fact of knowledge of his protected characteristic to prove the unwanted conduct was related to that.[146]The tribunal had regard to the fact that it is for the claimant to adduce some evidence to suggest that the unwanted conduct could be related to his protected characteristics: it is not enough to point to unwanted conduct and point to protected characteristics (Madarassy v Nomura International plc 2007 ICR 867). The claimant produced no evidence to suggest that the respondent could have done anything other than open an investigation. He did take issue with the meaning of the word “remitted” in section 47 of the 2007 Act and suggested a complaint did not fall within the respondent’s remit until they had waited 28 days.[147]The tribunal could not accept that position because it was not supported by the statutory provisions. The tribunal, having regard to the statutory provisions (section 47 of the 2007 Act) and Ms Wood’s evidence, concluded that where a conduct complaint is remitted to the respondent, it must (our emphasis) investigate it and, the term “remitted” means when the respondent receives a complaint from the SLCC.[148]The tribunal must address the key question of what was the factual reason why the respondent acted as it did. The tribunal concluded that the respondent’s action of opening an investigation related to the fact it has a statutory obligation to open an investigation when it receives a complaint from the SLCC. The tribunal concluded, for this reason, that even if the unwanted conduct had had the proscribed purpose or effect, it was not related to the protected characteristic of the claimant.[149]The tribunal next considered whether the unwanted conduct of suspending rather than abandoning the investigation (if it had the proscribed purpose or effect) was related to the protected characteristic of the claimant. The claimant put forward no evidence to explain or support his position, other than the fact that he believed this is what should have happened.[150]The tribunal, based on the evidence of Ms Wood, found as a matter of fact that the respondent has no statutory power to abandon an investigation. We accepted Ms Wood’s evidence that once it has been confirmed to the respondent that an appeal has been lodged under section 21 of the 2007 Act, the respondent will always suspend the investigation (if the appeal relates to the conduct element of the complaint) pending the conclusion of the appeal process.[151]The claimant, essentially, wanted the respondent to do something it does not have power to do (that is, abandon the investigation). The tribunal concluded, in those circumstances, that the respondent not abandoning the investigation related to the fact they had no power to do so, rather than anything to do with the protected characteristic of the claimant.[152]The tribunal decided, for all the reasons set out above, to dismiss the complaint of harassment. Victimisation[153]The tribunal had regard to the statutory provisions set out in section 27 Equality Act which provide that a person victimises another if they subject that other to a detriment because s/he does a protected act or they believe that s/he has done, or may do, a protected act.[154]A protected act is defined in section 27(2) and each of the following is a protected act:-(a) bringing proceedings under this Act (the Equality Act);(b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that they have contravened the Act.[155]The claimant relied on the protected act of informing the SLCC on the 11 September 2024 and the respondent on the 23 September 2024 of his intention to appeal to the CSIH. (The claimant, in his submissions, argued he had done four protected acts. This was not the case which had been set out in the Note and referred to at the start of the hearing. The tribunal determined whether the claimant had done the protected act as described in the Note, because this was the basis upon which the case had proceeded and upon which the respondent had prepared).[156]The first issue for the tribunal to determine is whether the claimant did a protected act. We noted there was no dispute regarding the fact the claimant informed the SLCC, by email of the 10 September 2024 (main folder C50) of his intention to appeal. The email was short and simply stated: “Your investigation is plainly and undoubtedly unlawful. I confirm that I will appeal to the Court of Session as a “practitioner” under section 21 within the 28 day limit. Your outlining of “Solicitor’s position” in brevitas is also inaccurate and denied”.[157]The email relied upon by the claimant did not, on the face of it, fall within the definition of a protected act. The claimant was questioned in cross examination about why he considered this to be a protected act. The claimant, when referred to this email, stated “I’ve never said this was the protected act”. The claimant was asked what discrimination it referred to, and responded “we’ll get to section 27 in submissions”. He was asked whether there was any reference to discrimination in his email and he responded “it was all about leaving me in peace to do the exam” (the claimant used the term exam to describe preparing for the appeal).[158]The tribunal concluded on the basis of the evidence before it, that the email of the 10 September 2024 was not a protected act, and we say that because it did not fall within the definition set out in section 27 Equality Act. Further, the email was to the SLCC and not to the respondent.[159]The claimant also relied on an email dated 23 September 2024 which, it was said, had been sent to the respondent informing them of his intention to appeal to the CSIH. This email was not produced in the documents for this hearing. The claimant was asked in cross-examination to take the tribunal to the document and he refused to do so, saying “why should I?”[160]The tribunal noted Ms Wood was asked about the email of the 23 September 2024 and responded “I don’t specifically remember that”. Ms Wood did accept that the respondent was aware the claimant had expressed an intention to appeal, but the respondent waits until confirmation of an appeal lodged is received before taking any action.[161]The tribunal, based on the evidence before it, concluded that at best, if the email existed, it was nothing more than a statement of intention to appeal the decision of the SLCC and on that basis, it did not amount to a protected act in terms of section 27(2) Equality Act.[162]The tribunal decided, for the reasons set out above, that neither of the emails relied upon by the claimant were a protected act in terms of section 27(2) Equality Act.[163]We should state that if we had found one or both of the emails relied upon by the claimant were a protected act, the tribunal would have dismissed the claimant’s argument that he had been subjected to detrimental treatment (the respondent opening an investigation into the claimant when they did and suspending the investigation rather than abandoning it) because of having done the protected act. The tribunal would have reached this decision firstly because the respondent has a statutory obligation to investigate when a complaint is remitted to it by SLCC and this was not influenced consciously or sub-consciously by the fact of an appeal against the SLCC decision. Secondly, the respondent has no authority to abandon the investigation and accordingly the fact they did not abandon the investigation had nothing whatsoever to do with the claimant’s intention to appeal.[164]The tribunal decided for these reasons to dismiss the complaint of victimisation.
Findings of fact
[1]In a claim form (ET1) received by the Tribunal on 25 September 2024 the claimant has brought complaints against both respondents under section 8 of the Protection from Harassment Act 1997 and sections 13, 19, 26 and 27 of the Equality Act 2010. He seeks compensation of £100,000 or £75,000 for the injury to his feelings.[2]The claimant is a solicitor currently facing professional disciplinary allegations arising from his communications with Roddy Dunlop KC (Dean of the Faculty of Advocates), Mr Anthony Graham KC (Chairman of Faculty Services Limited) and Ms Westwater (Advocates Clerk) in August 2024. The first respondent is the professional body for solicitors in Scotland and the claimant is one of its members. The second respondent is the statutory body responsible for all legal complaints in Scotland. Both respondents have a role in the investigation and determination of professional conduct complaints in relation to solicitors in Scotland. The essence of the claimant’s case is that the respondents treated him unlawfully by failing to follow the applicable policies and failing to respect his rights in relation to investigatory timescales.[3]In their responses (ET3s and attachments) the respondents both raised issues of jurisdiction. In correspondence of 4 November 2024, the second respondent also framed it as a strike out issue under what was then rule 37(1)(a) of the 2013 Rules of Procedure. EJ Hoey directed that those issues should be decided at this preliminary hearing. The claimant subsequently made an application to strike out both responses under rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 on the basis that they have no reasonable prospect of success. EJ Hoey directed that the claimant’s application to strike out should also be dealt with at this hearing. Issues[4]Given the way in which the claimant puts his case, there are really three issues:a. the applicability to either or both respondents of section 41 of the Equality Act 2010 (the “Contract Workers” provisions).b. Whether an Employment Tribunal in Scotland has jurisdiction to consider a claim under section 8 of the Protection from Harassment Act 1997.c. Whether either response had a reasonable prospect of success. Summary of the claimant’s argument[5]The claimant relied on section 41 of the Equality Act 2010 but no other provision of Part 5 (“Work”). The claimant was very clear that he did not rely on any other sections contained within Part 5 for the purposes of his claim in the Employment Tribunal, even though the first respondent conceded in its response that it was a trade organisation as defined by section 57.[6]Therefore, the claimant explicitly did not rely on section 53 (“Qualifications bodies”) or section 57 (“Trade Organisations”). The link to Part 5 is important because section 120 of the Equality Act 2010 gives Employment Tribunals jurisdiction relating to a contravention of Part 5, or certain other sections relating to Part 5.[7]As for section 41 (“Contract workers”), the claimant argued that both respondents were “principals” and that he was a “contract worker” for the purposes of that section. Alternatively, he argued that the second respondent was so closely associated with the first respondent that he could claim against it even if the tests in section 41 were not satisfied in relation to the second respondent. The claimant relied on principles that he said were to be derived from Leeds City Council v Woodhouse and another [2010] EWCA Civ 410.[8]As for the Protection from Harassment Act 1997, the claimant relied on a short passage in Veakins v Kier Islington [2009] EWCA Civ 1288, which he referred to as a “binding precedent” that claims based on the Protection from Harassment Act 1997 can be brought in an Employment Tribunal. That case concerned an appeal from the decision of a Recorder sitting in the Brighton County Court. The relevant passage is paragraph 17 in which Maurice Kay LJ, giving the judgment of the court, made the following remarks. It follows from what I have said that I would allow this appeal, substitute a finding for the appellant on liability and return the case to Brighton County Court for damages to be assessed. I add these observations. Since Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613, it has become more difficult for an employee to succeed in a negligence action based on stress at work. It seems that this may be causing more employees to seek redress by reference to harassment and the statutory tort, although it is doubtful whether the legislature had the workplace in mind when passing an Act that was principally directed at "stalking" and similar cases. Nevertheless, there is nothing in the language of the Act which excludes workplace harassment. It should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be "oppressive and unacceptable" but I have done so in circumstances where I have also described it as "extraordinary". I do not expect that many workplace cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for high-handed or discriminatory misconduct by or on behalf of an employer will be more fittingly in the Employment Tribunal. Reasoning Jurisdiction in relation to the Protection from Harassment Act 1997[9]I made it clear at the start of the hearing that since an Employment Tribunal is a “creature of statute” it only has the jurisdiction conferred on it by statute, or sometimes statutory instruments made pursuant to statute. An Employment Tribunal has no “inherent jurisdiction”, as some courts do. I said that it would be helpful if I could be taken to the statutory provisions which the claimant argued conferred the jurisdiction to hear civil claims for breach of the Protection from Harassment Act 1997. The claimant did not refer me to any. Briefly, he relied on The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994, but I understood him eventually to accept that the point was misconceived because(a) he was not seeking to bring a claim for breach of contract and(b) he did not allege that he was an employee of either respondent.[10]With the greatest of respect to the claimant and his interesting argument, I think his reliance on the observation of Maurice Kay LJ in Veakins is misconceived and based on a misunderstanding of what was said.a. First, Veakins was not a “binding precedent” on the point allegedly to be derived from it at all. In that case the litigation had been brought in a County Court, and not in an Employment Tribunal. The Court of Appeal was not concerned with jurisdictional questions in the Employment Tribunal at all and they did not arise on appeal, so any observations would not be binding on me, even if the Court of Appeal in England and Wales could give a binding decision on a question of jurisdiction in Scotland.b. Second, Maurice Kay LJ’s comments were merely to the effect that it would be rare that mistreatment in the workplace would satisfy the definition of harassment in the Protection from Harassment Act 1997. It is tolerably clear that he was contrasting the sort of treatment that might amount to a breach of the Protection from Harassment Act 1997 with the general run of workplace harassment cases, which would not. When he said that those cases might more fittingly be brought in an Employment Tribunal, he did not mean that they could be brought in an Employment Tribunal under the Protection from Harassment Act 1997. On the contrary, he was effectively saying that such complaints would have to be brought under the raft of discrimination legislation which was then in force, prior to the enactment of the Equality Act 2010. It is easy to see why “in the Employment Tribunal” might be convenient shorthand in 2009, before discrimination legislation was (mostly) consolidated into a single statute.c. Even if the claimant were correct about the meaning of Maurice Kay LJs observations, they could not confer jurisdiction on an Employment Tribunal. It is still necessary to identify the statutory provision that does so. It was not suggested at this hearing that the Protection from Harassment Act 1997 itself, the Employment Tribunals Act 1996 or any other statute did so. The words of Maurice Kay LJ in an appeal from a County Court claim cannot be a substitute. The Court of Appeal was not construing a statutory provision which might confer jurisdiction on an Employment Tribunal in Veakins, rather it was concerned with the evaluation of evidence and the threshold of harassment. See for example paragraph 1 of the judgment.[11]Therefore, my conclusion is that the Employment Tribunal has no jurisdiction to consider claims under the Protection from Harassment Act 1997.[12]I understand that another Employment Judge has already reached that conclusion in another unrelated claim brought by the same claimant. Apparently, that case awaits a r.3(10) hearing in the Employment Appeal Tribunal and the claimant has also made an application to the European Court of Human Rights. Contract workers – section 41 of the Equality Act 2010[13]All the main ingredients of the test in section 41(5), (6) and (7) of the Equality Act 2010 are missing.a. The claimant accepted that he was not “employed by another person” (s.41(5)(a)), though he argued that he might be employed as a solicitor in the future. The statutory wording is in the present tense. Future possibilities do not amount to being “employed by another person” at the relevant time.b. The claimant was not “supplied” to either respondent (s.41(5)(b) and (7)).c. Even if there were the necessary “supply”, it was not “in furtherance of a contract” to which the alleged principal was a party (s.41(5)(b) and (7)). The only contract the claimant could identify was one of insurance. Even if either respondent were party to that contract of insurance, it has nothing to do with the supply of the claimant as a worker.d. Neither respondent made work available to the claimant (s.41(5)). Authorising someone to work in a particular capacity or regulating their profession is not the same thing as making work available.[14]All those points are separate and essential aspects of the definition of “contract work”, “contract worker” and “principal”. The claimant’s argument would fail for any one of those reasons. I find that it fails for all of them. On the claimant’s pleaded case, I find that neither respondent fell within the definition of “principal” for the purposes of section 41 of the Equality Act 2010. That gateway to Part 5 of the Equality Act 2010 and the Employment Tribunal jurisdiction conferred by section 120 is not open to the claimant.[15]Leeds City Council v Woodhouse & another [2010] EWCA Civ 410 does not assist the claimant. It is not authority for the proposition that it might be possible to bring a claim against a body under section 41 even if the tests in section 41 are not satisfied, merely because of a close connection with a body to which section 41 applies. In any event, the claimant accepted that if the first respondent fell outside the scope of section 41 then the claim against the second respondent based on “close connection” must also fail. Human rights arguments[16]The claimant also advanced a human rights argument, which was not always focussed in a way that was easy to understand. I approach matters in the following way.a. I accept that an Employment Tribunal is a public body, bound by section 6 of the Human Rights Act 1998 to act in a way compatible with Convention rights.b. I also accept that I am under the duty in section 3 of the Human Rights Act 1998 to read and give effect to legislation in a way which is compatible with Convention rights (the duty of “conforming interpretation”).c. I do not accept the suggestion that I could make a declaration of incompatibility under section 4 of the Human Rights Act 1998 because that power is reserved in Scotland to the High Court, the Court of Session and the Supreme Court.d. I do not accept that Article 14 ECHR gives the claimant a freestanding right to complain of discrimination. Article 14 is concerned with the right not to be discriminated against in “the enjoyment of the rights and freedoms set out in the Convention”. Therefore, it complements and attaches to the other substantive provisions of the Convention and the Protocols.e. I accept that the claimant’s Article 6 rights are engaged by the proceedings in this Tribunal.[17]However, I do not accept that Article 6 can be relied on to create new substantive rights where they do not otherwise exist, such as a potential claim against a particular type of respondent. I do not accept that Article 6 can be relied on to confer jurisdiction on a Tribunal where Parliament has chosen not to do so. No authority was cited for either proposition, and given that:(a) the Equality Act 2010 allocates jurisdiction for breach of its provisions in a clear and comprehensive manner; and(b) it is well established that civil claims under the Protection from Harassment Act 1997 can be brought in the Sheriff Courts, I find that the claimant’s Article 6 rights and the right to an effective remedy are unimpaired. His Article 6 rights are engaged but not breached.[18]Even if I had found otherwise, I would not have been prepared to read provisions conferring jurisdiction on an Employment Tribunal into the Protection from Harassment Act 1997 because that would “go against the grain” of existing legislation and would amount to impermissible judicial legislation. In my judgment, applying the principles in cases such as Ghaidan v Godin-Mendoza [2004] UKHL 30, it must be left to Parliament to decide who can be sued for discrimination and, if so, the fora in which they can be sued. Those are policy questions for Parliament, not questions of interpretation for a judge. Even if the current legislative framework failed to give effect to the claimant’s Article 6 rights, I find that a conforming interpretation under section 3 would not be possible. The application to strike out the responses[19]I will deal with this shortly given my other conclusions. It is not possible to say, if the cases are taken at their pleaded highest, that the responses, or any part of them, have no reasonable prospect of success. The claimant did not really engage with that test and instead used his time to explain his own case. He did not explain why the defences, or any aspect of them, have no reasonable prospect of success.[20]The overall merits of the case currently bristle with disputes of fact and possibly law. To pick the example of the indirect discrimination claim brought under section 19 of the Equality Act 2010, it is not clear or admitted that the alleged PCP exists, that there is individual disadvantage, that there is group disadvantage, or that there is the necessary “particular disadvantage”. The appropriate pool for comparison is debateable, and the parties have not even begun to explore the possibility of justification defences.[21]That leads onto another point. This case has not yet had a case management hearing. The issues have not yet been defined or clarified. It is certain that further specification of the claim would be required, followed by consequential further details of the responses. It is well established that before contemplating striking anything out, a Tribunal must be clear about the shape of the claim or, by extension, the response. This case is a long way from that stage.[22]It would be wrong in principle to strike out the whole or any part of the responses simply because the claimant has a firm conviction that his claim should succeed. There would first be much to clarify, and then much to decide after hearing evidence. The claimant’s application for the responses to be struck out is therefore refused.
Conclusion
[23]Given my conclusions on the preliminary issues of jurisdiction the claim must be dismissed. I do not accept the claimant’s argument that a finding that the Tribunal lacks jurisdiction consequently deprives the Tribunal of the power to dismiss the claim. If that were right then no claim could ever be dismissed for lack of jurisdiction, and such claims would live on indefinitely, never determined on their merits but never dismissed either.[24]Although the second respondent’s grounds of resistance referred to a possible application for expenses, neither respondent made an application of that sort at the hearing. The parties are no doubt aware of the time limit in rule 75(1) of the Employment Tribunal Procedure Rules 2024.
Conclusion
[1]It is necessary to set our rather more of the background than might usually be the case.[2]These are the written reasons for the judgment on expenses summarised above. Oral reasons were given at the time, but the claimant disappeared from the video link shortly after I began to give them. The claimant had interrupted to say, “well done”, and “you’re just a guy who is sitting there who is a cheat. You are an absolute embarrassment. Listen mate, there’s no point talking to you…”. just before he disappeared. He did not reconnect before the hearing ended and as far as I am aware the Tribunal administration did not receive any requests for help or reports of technical difficulties. Subsequent correspondence suggested that the claimant made a deliberate decision to disconnect. It appears that the claimant requested written reasons on 9 May 2025, but that request was only drawn to my attention today. Applications for expenses[3]The second respondent applied for expenses in an email of 26 March 2025, relying partly on an “Expenses Warning Letter” dated 13 January 2025. The second respondent had sought a preliminary hearing on jurisdiction in the paper apart to its response (ET3) and had twice expressly reserved its position on expenses in the same document. Subsequently, in an email of 4 November 2025, the second respondent applied for the claim to be struck out on jurisdictional grounds under what was then rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013.[4]The first respondent also applied for expenses in an email dated 27 March 2025, adopting the same reasoning as the second respondent, and adding that the claimant had conducted the proceedings abusively. Context[5]The context in which each respondent applied for expenses is a judgment following a hearing of preliminary issues of jurisdiction on 26 February 2025. The written reasons for that judgment were prepared the same day and sent to the parties by the Tribunal administration on 27 February 2025. In summary:a. I decided that section 41 of the Equality Act 2010 (“contract workers”) did not apply to the claimant’s relationship with either respondent. That was then the sole basis on which the claimant argued that he could bring his claims, so they were dismissed.b. Additionally, I found that the Employment Tribunal had no jurisdiction to hear a claim under the Protection from Harassment Act 1997 against either respondent.[6]However, the first respondent (but not the second respondent) had always conceded that it fell within the definition of “trade organisation” for the purposes of section 57 of the Equality Act 2010. Despite that concession, the claimant explicitly stated that he did not rely on that section, and his arguments were solely focussed on section 41 of the Equality Act 2010 and the Protection from Harassment Act 1997. Application for reconsideration[7]On 26 February 2025 the claimant applied for a reconsideration of that judgment on the basis that I had misunderstood his argument, and that he had always relied alternatively on section 57. He later modified his submission, accepting that the mistake had been his in failing to rely on section 57 and now sought to do so against both respondents. The claimant accepted that the Protection from Harassment Act 1997 did not apply, and he did not seek to challenge that aspect of the judgment.[8]In a letter dated 14 March 2025 I refused all but one aspect of the application for reconsideration under rule 70(2). My reasoning was that only one point had a reasonable prospect of satisfying the criterion that it would be in the interests of justice to reconsider the decision. That was the claimant’s decision to rely instead on section 57 of the Equality Act 2010, a jurisdictional pathway which the first respondent had always accepted and conceded. Otherwise, I decided that the application had no reasonable prospect of success and that the judgment on preliminary issues should stand in all other respects. Consequently, the second respondent remained dismissed from the proceedings.[9]The claimant replied saying that “EJ Whitcombe has tacitly referred to the claimant as a papist by reason of him coming from England & Wales, with this being what Catholics are called in the foundational statute of all law in England & Wales, so the Claimant affirms that he insists on a Hearing to avoid complete dehumanisation of him in these circumstances.” I have never referred to the claimant as a “papist”, although the claimant sometimes signed his letters “Papist McAuley” until I raised with him the potential to cause offense. The claimant went on to ask, “Is EJ Whitcombe going to apologise for this racist & bigoted statutory provision in the founding statute of his jurisdiction? Has EJ Whitcombe ever given a Judgment in favour of a Catholic? Is this a racist & bigoted Judgment by EJ Whitcombe seeking to transfer money from a papist to a Protestant?” He then posed a large number of written questions and said. “EJ Whitcombe ‘must’ answer these questions on this disputed point. EJ Whitcombe’s position is not at all clear – he is hereby called upon by the Claimant to explain himself.”[10]In a letter dated 21 March 2025 I encouraged the claimant to reflect on the content and tone of his correspondence because, “The Tribunal would not wish to see matters escalate to the point where it is argued that he is conducting the proceedings in an unreasonable manner.”[11]The claimant also stated his intention to appeal to the EAT and applied for a sist pending that appeal. I refused that application with reasons on 26 March 2025. The claimant requested a “reconsideration” of that decision alleging “a lack of integrity for [EJ Whitcombe’s] alleged errors.” I treated that as an application for variation of the order refusing a sist or postponement. I refused the application with reasons in a letter dated 27 March 2025.[12]As already noted above, the second respondent applied for expenses in an email of 26 March 2025 relying partly on an “Expenses Warning Letter” dated 13 January 2025.[13]On 27 March 2025 the first respondent consented to the reconsideration to the limited extent I had proposed on 14 March 2025. Consequently, the claim now proceeds against the first respondent (only) under section 57 of the Equality Act 2010 (but neither section 41 of that Act, nor the Protection from Harassment Act 1997). The second respondent remains dismissed from the proceedings. The first respondent also applied for expenses, adopting the reasoning already set out in correspondence by the second respondent. Additionally, in the same correspondence, the first respondent argued that the claimant had conducted proceedings “abusively” in relation to EJs Hoey and Whitcombe and the respondent’s representatives.[14]Both respondents were content for their expenses applications to be dealt with on the basis of written submissions, without a hearing. Subsequently, the claimant asked for a hearing. I therefore arranged for a video hearing to minimise the additional expense.[15]The claimant corresponded the same day describing himself as “a papist”, referring to my decision on postponement as “pathetic and disgraceful”, adding “he is acting as an ignoramus and a bully” and accusing me of “racism and bigotry”.[16]On 31 March 2025 I confirmed that the application for reconsideration was allowed to the limited extent indicated above and substituted a finding (by consent) that the Tribunal had jurisdiction to hear a complaint against the first respondent under section 57 of the Equality Act 2010 (“trade organisations”).[17]I also gave directions for the hearing of the application for expenses, including a deadline of 17 April 2025 for written submissions, and added, “The claimant will need to give evidence of his assets, income and other matters relevant to his financial means. The respondents will need to provide a reasoned justification of the sums claimed by each of them”. I concluded by reminding the claimant that his repeated use of the term “papist” as well as other inappropriate, intemperate or insulting language was unacceptable, and that from that point onwards he must adopt a courteous and respectful tone. I suggested that it was quite possible to make points cogently and effectively without resorting to the sort of language that causes gratuitous offence.[18]In an email sent the same day, the claimant queried the statutory provision under which I sought details of his finances. In reply, I explained that it was uncontroversial that a party’s ability to pay might be a relevant factor when deciding whether to make an adverse award of expenses, and if so in what amount. The statutory authority for that direction was the general case management power in rule 30 of the Employment Tribunal Procedure Rules 2024, in anticipation of that information being verified by the claimant on oath or affirmation at the hearing under rule 43(2). Appeal to the EAT[19]On 7 April 2025 the claimant appealed the original judgment on preliminary issues of jurisdiction to the EAT. At the time of writing, that appeal awaits sifting.[20]On 8 April 2025 the claimant emailed the Tribunal alleging that the Tribunal had sent him correspondence “in defiance of the EAT”. He said that if the ET failed to confirm that proceedings were sisted until after the conclusion of the appeal to the EAT “I’m raising an action in the Outer House seeking a Court order for him to do so, as well as seeking damages for Judicial bullying in breach of s.8 HRA 1998”. I am not aware that the EAT has yet made any orders in the appeal at all, still less one forbidding correspondence with the claimant or the holding of further hearings.[21]I directed that the claimant should be asked whether he was applying once again for a sist of the proceedings pending conclusion of the appeal to the EAT. He confirmed that he was, saying also, “I am unable to continue further in ET proceedings due to stress (I can provide medical evidence for this if required).”[22]I refused that application, with reasons, in correspondence dated 23 April 2025. In brief, I decided that the interests of justice were best served by dealing with the application for expenses promptly, whatever might follow in the EAT. To the extent that the application was based on medical grounds, I refused it because the claimant had failed to provide any supporting medical evidence, as required by the Presidential Guidance on postponements effective from 1 February 2014. The claimant sought to challenge that decision by way of “reconsideration”, which I treated as an application for variation of an order. He asked what provision of the Presidential Guidance I relied on “to give him a right to this confidential information”. In the Tribunal’s reply dated 28 April 2025, I referred again to the Presidential Guidance, included a web link to it, and referred the claimant to the line of cases including Teinaz v London Borough of Wandsworth [2002] ICR 1471, CA. I also set out paragraph 22 of the judgment of Peter Gibson LJ. I concluded by saying that if the claimant continued to seek a postponement for medical reasons then he would have to provide appropriate medical evidence. He had offered to do so in his original correspondence of 7 April 2025, in the quotation repeated above. The hearing of the applications for expenses[23]The claimant took the oath so that I could treat facts asserted by him in submissions as evidence if appropriate. He was initially reluctant to do so, saying that he had sworn an oath in the claim form (ET1). That is incorrect, but even if it had been true it remained necessary to receive further evidence on oath from him. The claimant therefore had an opportunity to give oral evidence as to his financial means, but he chose not to do so. He had not given any written evidence of his financial means prior to the hearing. Tribunal correspondence had requested it, but the claimant had questioned the Tribunal’s power to seek it.[24]The claimant gave the following oral evidence about his legal experience and qualifications, which was unchallenged.a. The claimant has 5 grade As in his national exams.b. He has an LLB Honours Degree in Law with Spanish from Glasgow University.c. He obtained a Diploma in Legal Practice in 2010.d. He then obtained a LLM from Strathclyde University in 2011.e. He obtained a Master of Research and Legal Research from Glasgow University in 2012.f. He completed a traineeship and qualified as a solicitor over the period 2013-2015.g. He has set up a legal research company as a commercial enterprise. It provides a case law database and research software.h. The claimant thinks that he has good legal research skills.[25]Unfortunately, despite two clear warnings in prior correspondence, the claimant’s behaviour was unacceptable throughout the hearing. He was frequently sarcastic and disrespectful, and he interrupted disruptively. He repeatedly described things that I had said or done as “nonsense” or “absurd” or “a joke”. During the hearing he accused me of anti-Catholic bigotry. I told the claimant several times during the hearing that his conduct was unacceptable. There was no improvement or apology.[26]Ultimately, I had to mute the claimant’s microphone so that the respondents could make their submissions. As soon as the submissions of each respondent began, the claimant left his seat, returning to the camera only as the submissions for each respondent ended. He subsequently explained that this was to deal with physical discomfort and that he needed breaks every 45 minutes to move around and stretch, but that he had not been able to tell me because of his muted microphone. No physical health condition or need for adjustments had been raised in correspondence, at the start of the hearing, or at any point during the previous hearing on 26 February 2025. The claimant had not needed a break at all during the first hour or so of the hearing which dealt with his application for a postponement. He only left the camera when the respondents made their submissions and did so for the full duration of those submissions. However, it was clear that the claimant had been listening to those submissions and he responded to them.[27]At one point during the afternoon I adjourned the hearing for a short break solely so that the claimant could calm down, reflect on his behaviour and consider apologising. When the hearing resumed, he made a point of saying, “I am not apologising for anything”. The claimant also seemed to have an issue with my country of birth, saying more than once “are there not 7 days of the week in England?”. Towards the end of the hearing he appeared to try to mimic my voice or accent in a sarcastic and mocking manner, although he denied doing so. The claimant did not offer any other explanation for the unusual voice he adopted while referring to me by name. The claimant’s submissions included “you’re sitting there all la-de-da-de-da, you are playing God”, “why don’t you just get £500 an hour when you’re having a number 2” and “Obviously when it is you deciding it, Judge Whitcombe who is deciding it, put in £17k.” He concluded by saying “there was absolutely no point in me starting with you as a judge. Your bias is ridiculous,” and “You’re just a guy who is sitting there who is a cheat. You are an absolute embarrassment. Listen mate, there’s no point talking to you…”. That is the last note I have before the claimant left the video call. Application to postpone the hearing – medical grounds[28]At the start of the hearing I checked whether the claimant had submitted any late medical evidence to support his application to postpone for medical reasons. It was possible that I might not have seen anything sent to the Tribunal within the previous few days. The claimant had not submitted any medical evidence suggesting that he was too ill to attend, although he had originally offered in correspondence to do so (see above). The claimant said that he resented the implied challenge to his integrity, but the need for medical evidence is routine practice recognised in well-established case law and the Presidential Guidance applicable to this issue in Scotland. No challenge to integrity is implied by those rules. It is nevertheless a matter of concern that the claimant said today “there is no medical evidence” despite having implied that he could produce some, and also that he said that he had appeared in the Court of Session within the previous week, despite asserting that he was too unwell to appear at this hearing. Since the claimant has been well enough to appeal to the EAT, to engage in extensive correspondence with the Tribunal and the President’s office, and well enough to appear in the Court of Session, in the absence of any medical evidence at all I find that he is also well enough to attend this hearing on the issue of expenses. Conflict of interest – other proposed litigation[29]I also checked whether the claimant had commenced the proceedings he proposed to bring in the Court of Session alleging judicial bullying on my part and human rights breaches. He said that he had not. In those circumstances, I did not think that any conflict of interest arose which might give rise to actual or apparent bias. Application to postpone for lack of readiness[30]Unexpectedly, the claimant applied for the hearing to be postponed on the basis that the respondents were both in breach of directions such that rule 75(2), which requires that a reasonable opportunity to make representations should be given to a potential paying party before making an order for expenses, could not be complied with. Put in that narrow way the application was not well-founded because the claimant had already corresponded more than once about the merits of the applications for expenses, and he was also present today and able to make further oral submissions. However, I also treated his application as a broader application for a postponement on the basis that the hearing could not go ahead fairly for two reasons:a. the claimant had not been able to access the joint file of documents prepared for the hearing by the second respondent;b. the first respondent’s written submissions were late and the claimant had not read them.[31]After exploring the factual background with the claimant I was not satisfied that either or both of those points were sufficient justification for the postponement of this hearing.[32]I will deal first with the joint file of documents. The claimant had been sent a Mimecast link to the joint file of documents by the second respondent and, in the normal way, required a password to access it. For reasons which are not clear, he did not receive the email containing the password. However, he realised that and took no steps at all to resolve the problem. He did not contact either respondent to alert them to his difficulty and he did not contact the Tribunal about it either. Instead, he raised it for the first time at the start of this hearing as part of the basis for his postponement application. If the claimant had taken reasonable steps then it would have been a simple matter to resolve quickly. That was demonstrated during this hearing when it took just a few minutes for the claimant to be re-sent the password and for him to download the documents. I do not accept the claimant’s submission that he was not obliged to take any steps to obtain the documents, or that he required an invitation before he could contact the second respondent about the situation. The effective cause of the fact that the claimant had not been in possession of the documents well in advance of this hearing was not any technical difficulty or proven failure on the part of the second respondent, but rather the claimant’s own deliberate failure to do anything to resolve a simple password problem.[33]Further, we established that the respondents’ applications for expenses were, between them, based on just 55 pages of the much larger file of documents, plus the claim form. The claimant can reasonably be assumed to be familiar with the contents of his own claim form, and the other 55 pages included written submissions, a judgment and ET correspondence which had all been sent to the claimant separately in recent weeks, and to which he had usually replied. There were few, if any, new or unfamiliar documents in issue.[34]As for the first respondent’s submissions, they were certainly late. The deadline was 17 April 2025 and the claimant received them on 1 May 2025. However, that was still a week before this hearing. The first respondent’s written submissions were actually very similar to the second respondent’s submissions, and that reflects the original position when the first respondent adopted the second respondent’s reasoning at the time of making the application. The claimant made a deliberate decision not to read the first respondent’s submissions. He accepted that he had received the email, understood what it was, but had decided not to open the attachment because it was late. Since it would only have taken a few minutes to read those submissions, I find once again that the effective cause of the fact that the claimant had not read them was his own deliberate decision not to read them, rather than the lateness of receipt.[35]For those reasons it appeared to me that the claimant had been, at best, reckless with his preparation and had failed to do what was reasonable to prepare for the hearing. At worst, he had acted opportunistically in an effort to prevent the hearing from going ahead. It was not necessary to decide which category applied. The claimant had already been given a reasonable opportunity to prepare and to make submissions.[36]Against that background I decided that it was reasonable to expect someone of the claimant’s legal ability, experience and qualifications to read the limited number of necessary documents during an adjournment before making his submissions. The claimant said that he would need 7 days to read the documents. I did not think that so long was necessary. Instead, I gave the claimant 1 hour and 45 minutes in which to read the documents to which the respondents had referred. He should already have been familiar with all or most of them anyway. They totalled 55 pages including written submissions plus the claim. He was also given the page numbers and the index to the file contained hypertext links to each document. The claimant returned from that break saying that he would make his submissions “100% under protest”. Legal Principles[37]All references to rules are to the Employment Tribunal Procedure Rules 2024.[38]Rule 2 (interpretation) provides that in Scotland all references to costs (apart from “wasted costs”) must be read as references to expenses.[39]Rules 72 to 76 provide as follows: Definitions 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. Costs orders and preparation time orders 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) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing. (2) A preparation time order is an order that the paying party make a payment to the receiving party in respect of the receiving party’s preparation time while not represented by a legal representative. (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. (4) The Tribunal may decide in the course of the proceedings that a party is entitled to either a costs order or a preparation time order but may defer its decision on the kind of order to make until a later stage in the proceedings. When a costs order or a preparation time order may or must be made 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— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. (4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing, and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. Procedure 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). The amount of a costs 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(1), 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(2), 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. (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.[40]Rule 82 now embodies the principle that when deciding whether to make an order for expenses the Tribunal may (not must) have regard to the paying party’s ability to pay. It has long been established that it is often wise for a Tribunal to raise the issue of means, certainly where the sums at stake are substantial (Ono v NHS Leicester City [2013] ICR 91, EAT, Doyle v North West London Hospitals NHS Trust [2012] ICR D21, EAT). The issue is not necessarily confined to ability to pay at the date the order is made, it might also extend to future ability to pay (Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT).[41]I adopted a staged approach:a. Consider first whether the situation fell within one of those set out in rule 74 so as to trigger a discretion to award expenses. If so, then the Tribunal “must consider” whether to make an order, but, importantly, it is not mandatory and remains a matter of discretion.b. If a threshold condition is met, then should I as a matter of discretion award expenses in favour of either respondent?c. If so, then I would turn to the amount. The structure of rule 76 effectively allows me to assess expenses summarily, up to but not exceeding £20,000 for a receiving party. Alternatively, I could make an order for a more detailed assessment mirroring civil court practice, in which case the £20,000 limit does not apply.d. At the second and third stage I may (not must) have regard to the paying party’s ability to pay. However, the claimant provided neither written nor oral evidence of his ability to pay, beyond saying that he did not have the total sums sought. Therefore, I was not able to take into account the claimant’s financial means in any meaningful fashion.e. When applying those rules I also took into account the overriding objective in rule 3, and the need to decide this issue fairly and justly. Conduct - rule 74(2)(a)[42]“Unreasonable” conduct is not defined and bears its ordinary everyday meaning. It is important to analyse (though not necessarily in separate compartments) the nature, gravity and effect of the unreasonable conduct (Yerrakalva v Barnsley MBC [2012] ICR 420, CA).[43]It is not necessary for there to be a precise causal relationship between unreasonable conduct and the expenses incurred or claimed by the receiving party. It is not punitive or impermissible for a tribunal to award expenses without confining them to those strictly proven to be attributable to the unreasonable conduct (McPherson v BNP Paribas [2004] ICR 1398, CA, Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT, Yerrakalva (above)). A “broad-brush” assessment at first instance will often be appropriate and an overly-analytical approach should be avoided (Sunava Ltd v Martin [2018] ICR D9, EAT).[44]Given the conclusions reached below, it is not necessary to consider any of the legal principles applicable to vexatious, abusive or disruptive conduct. No reasonable prospect of success - rule 74(2)(b)[45]The question is not whether the paying party genuinely thought that they were in the right, but rather whether they had reasonable grounds for doing so (Scott v Inland Revenue Commissioners) [2004] ICR 1410, CA).[46]It may be relevant to consider whether the complaint lacked reasonable prospects of success from the outset, or whether that only became clear from the date on which a response was filed, or certain evidence disclosed. Other relevant factors[47]While it is often said that awards of expenses are the exception rather than the rule, that cliché reflects the rarity of the situations falling within rule 74 and the fact that expenses are certainly not awarded in Employment Tribunals simply because the receiving party has been successful on an issue, or in an entire claim. Awards of expenses are certainly rare, but that is because conduct falling within rule 74 is rare (Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT).[48]Parties without legal representation or training often find it difficult to assess their own claim with the necessary objectivity, or to identify, understand and apply the relevant legal principles. The claimant is not in a similarly disadvantaged position. He considers his own legal research skills to be good, he is well qualified, and he holds a practising certificate as a solicitor. I find that he is well equipped to do appropriate legal research, to assess the merits of an argument and to distinguish weak points from strong ones. He is in a better position than most self-represented parties to understand when an argument has no reasonable prospect of success, especially if put on notice of the other side’s view that a point falls into that category.[49]It is a fundamental principle that awards of expenses are made to compensate the receiving party and not to punish the paying party. Since awards are intended to be compensatory, they will be limited to expenses reasonably and necessarily incurred (Yerrakalva, above). For the same reason, the paying party’s ability to pay must be balanced against the need to compensate a receiving party unreasonably put to expense. The former may trump the latter, but not necessarily. This is reflected in the wording of what is now rule 82.[50]If a Tribunal or another party has warned a party of their intention to apply for expenses, then that might well be relevant to the Tribunal’s wide discretion. Reasoning and conclusions Threshold conditions[51]I find that two of the threshold criteria for an award of costs are satisfied.a. First, in so far as the complaint against each respondent was brought under section 41 of the Equality Act 2010 and the Protection from Harassment Act 1997, it had no reasonable prospect of success for the purposes of rule 74(2)(b). That was clear from the outset.b. Second, the claimant acted unreasonably in bringing and continuing proceedings on that basis for the purposes of rule 74(2)(a).[52]I refer to my reasoning in the judgment following the preliminary hearing on jurisdiction, especially paragraphs 9 to 15 of the written reasons for that judgment. In summary, none of the main ingredients of the test in section 41 of the Equality Act 2010 were present, and the lack of any one of them would have been fatal to the claimant’s argument. The claimant’s argument in relation to the Protection from Harassment Act 1997 was based on a failure to identify any provision of that Act conferring jurisdiction on an Employment Tribunal combined with a misunderstanding of comments made by Maurice Kay LJ in Veakins v Kier Islington [2009] EWCA Civ 410. The arguments put forward by the claimant had no reasonable prospect of success from the outset.[53]The unreasonableness of the claimant’s position was compounded by the following factors:a. Both respondents drew attention to the weakness of the claimant’s arguments on the above points in their responses.b. The claimant had put forward the same argument in relation to the Protection from Harassment Act 1997 unsuccessfully in another case, but was not deterred from running the equivalent argument in this case.c. The first respondent drew the claimant’s attention to the fact that it was a “trade organisation” for the purposes of section 57 of the Equality Act 2010. However, the claimant insisted on pursuing other flawed bases of jurisdiction and explicitly did not rely on section 57. He belatedly adopted that point at the reconsideration stage. He could have done so from the outset, especially given the helpful concession made in the first respondent’s grounds of resistance, and his failure to do so has caused delay and expense.d. The second respondent wrote a costs warning letter to the claimant on 13 January 2025. In accordance with normal practice, it was not shown to me until the application for costs was made and I was not aware of it at the time of my decision on jurisdiction. It correctly summarised the applicable legal principles in clear terms and correctly anticipated the decision that I ultimately made. The letter warned of the second respondent’s intention to apply for an order for expenses within 28 days of judgment and encouraged the claimant to take independent legal advice. The claimant replied by email an hour later saying simply “Thanks for your email. Your offer is hereby rejected.”[54]The paragraphs above set out the nature of the unreasonable commencement and conduct of proceedings by the claimant. As for its gravity, I regard it as a serious example of unreasonable conduct. The claimant’s decision to pursue those arguments despite several warnings generated a great deal of correspondence, a preliminary hearing on jurisdiction and much associated delay and expense.[55]At this hearing the claimant put forward some new arguments, not canvassed at the preliminary hearing on jurisdiction. In effect, he was arguing that the claims had enjoyed a reasonable prospect of success, and/or were reasonably brought and pursued for those additional reasons. I did not agree, and I did not think that any of the new arguments had any merit. I will summarise them below, together with my reasons for rejecting them.a. The claimant argued that the application for expenses was premature, because the proceedings had not been finally determined for the purposes of rule 75(1). I find that argument to be misconceived because rule 75(1) sets a final deadline for an application for expenses. It certainly does not preclude an earlier application, including applications before proceedings have been finally determined. In any event, proceedings have been finally determined so far as the second respondent is concerned.b. The claimant argued that rule 99 and section 121 of the Equality Act 2010 envisaged that proceedings could be transferred to the Employment Tribunal by a Court. That is correct in some circumstances, but it has no bearing on jurisdiction in this case. Section 121 deals with “non-discrimination rules” in pension schemes and a similar provision relates to equal pay claims, but they have no application to the claim brought by the claimant. Further, no proceedings have been transferred to the Employment Tribunal by a Court in this case, so the argument would be hypothetical even if it were correct in principle.c. The claimant argued that I did not use terms such as “unreasonable” or “vexatious” in the judgment on preliminary issues. That is correct, but it was unnecessary to do so because I was not considering an application for expenses at that stage. Indeed, it might well have been unwise to use that sort of language (Oni v NHS Leicester City [2013] ICR 91, EAT).d. The claimant argued that I did not have jurisdiction to make an award of expenses in favour of the second respondent because it had been dismissed from the proceedings. He also argued that a finding that I had no jurisdiction to consider a complaint against a respondent necessarily meant that I had no jurisdiction to award expenses either. I find that both arguments are misconceived. The power to award expenses is based on the fact that the second respondent was a party and made its application for expenses within the applicable time limit after the conclusion of proceedings, so far as it was concerned. A finding that the Tribunal has no jurisdiction to hear a certain complaint does not mean that parties to that litigation are treated as never having been parties, or that they cannot apply for expenses.e. The claimant argued that it could not be unreasonable to bring or to pursue a claim if it was not rejected by the Tribunal under rule 13. If that argument were correct then it would deprive rule 74(2)(a) of almost all meaning, but the argument is not correct. Rule 13 is a direction to members of the Tribunal administration. A failure by Tribunal staff to refer a question of jurisdiction to the Tribunal cannot be equated with a conclusive finding by a judicial body that it does have jurisdiction, or even as any indication of the reasonableness of bringing or pursuing the claim.f. The claimant argued that Parliament had not given the Tribunal any power to grant expenses for a “substantive defect”. That phraseology derives from rule 13 (see above), but the submission misses the point. Rule 13 does not deal with expenses. Expenses are dealt with by Part 13 of the Employment Tribunal Procedure Rules 2024 (i.e. rules 72 to 82). The power to award expenses derives from Part 13 and that is what I have applied.g. The claimant relied on rule 35, effectively reiterating the argument at sub-paragraph d, above. I reject the argument for the same reasons.h. The claimant relied on the fact that the original judgment (just like this one) described him as being “in person”. That was correct, because the claimant represented himself. He had not engaged a representative, nor was he representing anyone else. That does not mean that the claimant cannot be or is not also a solicitor, as the early paragraphs of the first judgment found. I also had sworn evidence from the claimant today that he is a solicitor. He sometimes signs himself “Solicitor McAuley”. It is also obviously the foundation of his claims against these two respondents. It is wholly unarguable that I should proceed on the basis of a fiction that the claimant is not a solicitor when deciding whether it was appropriate to award costs.i. The claimant also made submissions on rule 76(1)(b)(ii), to the effect that I could not proceed to assess costs because the information supplied by the respondents was not in accordance with rules in SSI 2019/75 derived from the Act of Sederunt. However, that argument is misconceived, because I was being asked to assess costs summarily under rule 76(1)(a), and not to carry out a more detailed assessment under rule 76(1)(b)(ii).j. Finally, the claimant submitted that it would be wrong to award costs when his claim against the first respondent continued and had not been dismissed. However, that overlooks the fact that the only reason why a claim currently continues against the first respondent is a fundamental change in the claimant’s argument at the point of reconsideration. Prior to that the claim was brought under section 41 of the Equality Act 2010 and the Protection from Harassment Act 1997 only. When put on that basis the claim had no reasonable prospect of success and was unreasonably brought and continued. The claimant only sought to rely on section 57 of the Equality Act 2010 at a later stage. For the purposes of rule 74(2)(b) the claim as it was originally put had no reasonable prospect of success. It was also unreasonable to rely on flawed arguments instead of section 57 of the Equality Act 2010 for as long as the claimant did.[56]Since I have found that the claims under section 41 of the Equality Act 2010 and the Protection from Harassment Act 1997 had no reasonable prospect of success against either respondent, and that it was unreasonable for the claimant to bring and to maintain the claims on that basis, it is not necessary for me to decide also whether the claimant has conducted the proceedings vexatiously, abusively or disruptively. I reach no view on that question, so it remains an open question should it be relevant for any other purpose at any other stage of these proceedings. Whether to make an award[57]The next question is whether, as a matter of discretion, I should make an award of expenses. I have decided that I should. It would be just for the claimant to compensate each respondent for the expenses incurred in defending claims which had no reasonable prospect of success and which were unreasonably brought and continued. The claimant had the education, training and legal expertise to make proper litigation decisions but pressed on with points that were doomed to fail. The respondents fairly and accurately drew the weakness of the claimant’s arguments to his attention.[58]The claimant gave me no evidence of his means beyond an uncorroborated assertion that he did not have £17,000 available. He did not provide any bank statements or other supporting documents and he did not provide any other oral evidence of his means. However, he is in business as the owner and developer of a legal research website which is a commercial enterprise. He is also a qualified solicitor with graduate and postgraduate qualifications in law. I find that he has significant earning capacity. On balance, I find that it would be in the interests of justice for the claimant to be ordered to pay expenses. Amount[59]I was asked to assess the amount of the award under rule 76(1)(a) and not, as the claimant appeared to think, rule 76(1)(b)(ii). I am required to carry out a broad-brush but fair assessment in which precise causation of expenses is not a necessity. However, the fundamental compensatory principle means that the receiving parties can only expect to be compensated for expenses properly and reasonably incurred.[60]I was provided with schedules of costs which each respondent was liable to pay to the solicitors representing them. I also have my own experience of market rates, typical expenditure on legal expenses and the amount of preparation typically necessary for different types and stages of Employment Tribunal hearing. The hourly rates of the partners involved were reasonable (£210 for the first respondent and £250 for the second respondent), as was the decision to involve a fee earner of that seniority. The way in which the claimant has litigated this dispute has generated much long and overly complicated correspondence. The claimant has also made some very serious allegations about legal representatives. The respondents were reasonably entitled to use a senior and experienced fee earner of partner level.[61]In my assessment the costs incurred by the first respondent were reasonable, realistic and proportionate to the complexity of the issues. That said, if the claimant had brought a complaint under section 57 of the Equality Act 2010 from the outset, rather than adopting that concession belatedly as part of the reconsideration process, the respondent would have to have prepared a response anyway. The first respondent has been put to trouble and expense by unreasonable arguments which had no reasonable prospect of success, but some expenditure would have been necessary to defend a claim put on the jurisdictional basis which the first respondent conceded. The first respondent claimed £4,452.00 excluding VAT. I decided that a fair sum to award in the above circumstances would be £4,000 plus VAT making £4,800.[62]The “elephant in the room” (as I called it in submissions) was the fact that the second respondent was seeking expenses totalling £14,430 plus VAT, or alternatively £6,655 plus VAT representing expenditure since the costs warning letter. The second respondent had not initially sought to explain the difference between those figures and the significantly smaller sum sought by the first respondent. It was clear enough that the second respondent had spent much more time on preparation, but it was not clear why that had happened or why it was reasonable.[63]Mr Milligan helpfully explained that the second respondent had taken responsibility for preparation of the joint file of documents, and I note that the second respondent generally took the lead in submissions too. However, I still think that £14,430 is disproportionate given that the claim against the second respondent failed and was dismissed at the first preliminary hearing. I decided that the fair sum to award in those circumstances would be £5,000 plus VAT making £6,000. I arrived at that figure by taking the first respondent’s claim as a reference point, and adding some allowance for the additional work reasonably done by the second respondent.