Ms C Cesari v Brandmovers Europe Limited — 2024

This is a costs judgment following the adjournment of the final hearing listed for 20 February 2024. The respondent's solicitor had emailed the Tribunal on 12 February 2024 flagging a potential issue of illegality concerning the claimant's tax position arising from a split-payment arrangement (UK PAYE and US dollar payments). At the start of the final hearing the respondent applied to amend its response to plead illegality, which necessitated an adjournment because disclosure and witness evidence would be required to deal with the point.

The Tribunal (Employment Judge Abbott sitting with Miss N Murphy and Mrs N Beeston) found that Rule 76(1)(c) was engaged because the hearing had been adjourned on an oral application by the respondent made at the hearing itself, less than seven days before it began. Exercising its discretion, the Tribunal concluded that the respondent should have been alert to the illegality point much earlier: the split-payment arrangement was known throughout the claimant's employment, no issue of illegality was raised in the response or at the January 2023 Case Management Discussion, and no disclosure on the point was sought until 31 January 2024. The Tribunal gave no weight to the strength of the illegality point, focusing on the timing of its being raised, and noted that the late adjournment had financial consequences for the claimant and would delay determination of her claim by around a year.

On quantification under Rule 78, the Tribunal ordered the respondent to pay the claimant £2,750 plus VAT, comprising counsel's brief fee of £2,000 plus VAT for the hearing and £750 plus VAT for solicitors' preparation. No award was made for future costs of dealing with the illegality issue, since those costs would have been incurred in any event had the issue been raised earlier.