Mr M. Thomas v McDowell & Co Limited and 1 other — 2021

The claimant presented claims for unfair dismissal and outstanding commission pay. At this hearing the tribunal was not deciding the substantive merits of those claims. It dealt with the respondents' application to re-amend the grounds of resistance so they could rely on section 111A of the Employment Rights Act 1996 in relation to a 18 March 2020 telephone conversation and a 26 March 2020 email, and with the claimant's application for costs.

Employment Judge P Klimov granted leave to re-amend. The judge found that the change from a without prejudice case to a section 111A case was a substantial alteration, but held that the admissibility issue remained live and that the balance of prejudice favoured allowing the amendment. When the hearing resumed, the claimant accepted that the conversation was a pre-termination negotiation within section 111A, so the admissibility issue no longer required determination for the unfair dismissal complaint.

On costs, the tribunal found that the respondents had acted unreasonably by pursuing the admissibility point on a without prejudice basis, threatening the claimant with costs consequences, and then changing to a section 111A case only the day before the hearing. The tribunal accepted that some of the claimant's time related to other case management matters and that the full amount claimed was excessive for the admissibility issue alone. It therefore ordered the respondents to pay £3,120, being 50% of the £6,240 claimed.