Mr D Sullivan v Foundry Engineering and Technical Limited — 2021

Mr D Sullivan resigned on 30 April 2020 and said his resignation gave rise to constructive unfair and wrongful dismissal claims. The judgment records that McTaggart Solicitors first emailed a claim form to the Wales Employment Tribunal on 28 July 2020, that email filing was not a prescribed method, and that a hard copy was hand-delivered to the Cardiff tribunal office on 19 August 2020 within time. A later online submission on 4 November 2020 led to the claim being processed again and to a Rule 27 notice about apparent lateness, but the claimant then withdrew the claim on 24 February 2021 and the claims were dismissed on withdrawal by a separate judgment sent on 12 March 2021.

This reserved judgment dealt only with the respondent's post-withdrawal applications for a costs order and a wasted costs order. The respondent said the claim had been brought to harass it or in retaliation to parallel litigation, and relied on the claimant's correspondence, alleged failures to engage, delay in disclosure, the late withdrawal, and the initial email submission of the claim form. The tribunal applied Rule 76 of the Employment Tribunals Rules, noted the three-stage approach in Hossaini v EDS Recruitment Ltd, and also referred to ET Marler Ltd v Robertson, Scott v Russell, Attorney General v Barker, Yerrakalva and Ridehalgh v Horsefield.

The tribunal rejected the suggestion that the claim was brought to harass the respondent or for a retaliatory motive. It found the claimant's resignation email showed he intended to seek legal advice, that the later correspondence and delays did not amount to unreasonable conduct, and that the withdrawal occurred at a relatively early stage after a response had been filed and before any final hearing. It also relied on McPherson v BNP Paribas when concluding that withdrawal itself was not unreasonable. Although the initial email submission of the claim form was negligent, that error was rectified by hand delivery within time and did not cause the respondent unnecessary costs, so the wasted costs test was not met. The respondent's applications for a costs order and a wasted costs order were therefore refused, and no monetary award was made.