Mr R Kiseliov, Mr E Kurktus and Mr J Iljin v Alpha Vehicles Limited — 2022

At the 8 July 2022 preliminary hearing before Employment Judge James sitting alone, the tribunal dealt with three applications arising from an earlier unless order that had dismissed the claimants' claims and response to counterclaim. The underlying case had involved claims for notice pay, holiday pay, arrears of pay and alleged non-payment of the National Minimum Wage, together with a respondent counterclaim. The tribunal reviewed a lengthy history of non-compliance with directions, including failures to provide further particulars, lists of issues, witness statements and documents by the ordered dates, and the late emails sent on 15 March 2022.

On the Rule 38(2) application to set aside the dismissal, the tribunal accepted that the application had been made promptly and that the failures were not intentional, noting language difficulties and the claimants' periods without representation. It nevertheless refused relief because full and sufficiently detailed witness statements for the final hearing had not been provided in time, the material that was sent was brief and not drafted for the final hearing, the late compliance had to be viewed in the context of repeated earlier defaults, and the tribunal was not satisfied that future directions would be followed in a timely way. It also noted that, had the claims not been dismissed, the final hearing would likely have had to be adjourned.

On the costs application against the claimants, the tribunal found that continued non-compliance with orders amounted to unreasonable conduct and that the threshold for a costs order was met. It declined to make an award, however, because the claims had already been dismissed, the claimants had been denied the opportunity to have their dispute heard, and their means appeared limited.

On the wasted costs application, the tribunal found that Ms Hashmi had acted improperly, unreasonably and, in the non-technical sense used in the authorities, negligently. The tribunal said she had not taken the steps needed to ensure the 6 May 2022 hearing could proceed smoothly, and that relevant material had been sent in a series of late emails rather than in good time. It held that her conduct caused the respondent to incur unnecessary costs because the hearing had to be adjourned and a further hearing listed. The tribunal ordered wasted costs of £4,500, calculated by allowing £2,000 for solicitors' costs and the £2,500 counsel's fee in full.