Ms P Malpeli v Gen2 Property Ltd — 2021

This was a costs judgment heard on the papers in London South on 8 October 2021 before Employment Judge Khalil sitting with Ms A Boyce and Mr P Morcom. The claimant applied for costs under Rule 76(1)(a) of the Employment Tribunals Rules 2013, relying on alleged unreasonable and/or disruptive conduct by the respondent in relation to the conduct of the proceedings.

The tribunal applied the approach in Yerrakalva v Barnsley Metropolitan Borough Council and asked whether the respondent had acted unreasonably in bringing, defending or conducting the case, considering the whole picture. It found that the parties had not properly raised before the hearing the admissibility issue concerning without prejudice communications and section 111A ERA 1996, although the point had been referred to in earlier correspondence. When the matter arose on the first day, the respondent’s counsel said instructions were needed, and the hearing could not start as planned.

The tribunal found the respondent’s conduct unreasonable because the issue should have been foreseen and addressed before the hearing, particularly as the respondent had arranged or undertaken the relevant meeting and was the party seeking to rely on the inadmissibility point. The tribunal also noted that the respondent was represented by counsel and by Invicta Law, and that no evidence was given about financial position. It also found that some blame lay with the claimant because the point had not been properly considered by her side either, so responsibility was shared.

On apportionment, the tribunal decided that primary responsibility lay with the respondent and assessed blame at 70% against the respondent. The claimant had sought £4,560 in costs but had not provided a breakdown. The tribunal assessed the claimant’s overall cost of the proceedings at £9,000, made up of an estimated £4,500 for the final hearing and £4,500 for the January listing, with the additional cost calculated at £3,500 after comparison with the three-day hearing that would otherwise have proceeded. Applying the tribunal’s calculations, it awarded £2,821 in costs to the claimant.