Mr A Foster v AND Rowes Garage Limited — 2017

This judgment concerns the respondent's application for costs after the claimant's substantive claims had already been dismissed in the tribunal's earlier judgment of 5 July 2017. The claimant had brought claims for unfair dismissal and disability discrimination, including direct discrimination, discrimination arising from disability and harassment; the judgment also records that an age discrimination claim had been withdrawn. The respondent had accepted that the claimant was disabled by reason of rheumatoid arthritis and a hearing impairment.

Applying rule 76 of the Employment Tribunals Rules 2013 and the two-stage approach in Monaghan v Close Thornton and Brooks v Nottingham University Hospitals NHS Trust, the majority held that once the claimant had received the agreed bundle of documents and the respondent's witness statements it must have been clear that the claims no longer had any reasonable prospect of success. The majority therefore found that it was unreasonable for the claimant to continue the proceedings through to the full hearing. Mr Knox dissented on the threshold issue, taking the view that the claimant, as an unrepresented lay person, could not be said to have acted vexatiously or unreasonably and that the claims were not shown to have lacked reasonable prospects from the outset.

On quantum, the tribunal noted the claimant's evidence that he had no savings, was in regular employment, owned his home subject to a mortgage, and was the main carer for his disabled wife. The majority nevertheless rejected the minority view that any award should be limited to £500. It allowed £2,200 for post-bundle preparation and attendance at the main hearing, £400 for the initial costs application work, and £7,000 for counsel's fees. VAT was not awarded because the respondent was VAT registered. The final order was that the claimant pay the respondent's costs in the sum of £9,600.