Mr M v J Moses AND The Royal National Institute for Deaf People (t/a Action on Hearing loss) — 2019

This judgment concerns the respondent's costs application rather than the merits of the underlying claims. The tribunal recorded that the claimant's original ordinary unfair dismissal claim arose from his dismissal after information about him was published in the media, but he had not accrued two years' service at the time of dismissal. EJ Welch later struck that unfair dismissal claim out as having no reasonable prospect of success.

The ET1 also ticked race discrimination, but no particulars were initially given. Although the claim was later corrected for the missing ACAS early conciliation certificate and accepted out of time, the claimant's further and better particulars still did not identify the protected characteristic or make clear how the race claim was advanced. On 14 March 2019 the amendment applications in relation to both the race discrimination claim and the fixed-term employee claim were refused.

Applying Rule 76 of the Employment Tribunal Procedure Rules 2013, the tribunal held that the fact the claimant was unsuccessful was not in itself enough to justify costs. It found, however, that the respondent had been put to the cost of preparing for and attending hearings in defence of a claim that had no merit, and that the final preliminary hearing was needed because the earlier hearing had run out of time after a delayed start and time wasted in the proceedings. Taking account of the claimant's evidence that he would have about £300 per month free to pay and the absence of further representations on means, the tribunal awarded costs for attendance at the 14 March hearing and some preparation time, assessed at £1,000 before VAT and £1,164 including VAT.