Ms A Osborne v Xace Limited — 2023

Employment Judge Burge determined the respondent's costs application on the papers and, in the judgment sent on 17 July 2023, refused it. The application followed the claimant's disclosure of an Occupational Health report on 19 June 2023, about two weeks before a preliminary hearing, after earlier directions requiring her to identify the condition said to amount to a disability and to serve medical evidence. The respondent later quantified the costs application at £12,166.53.

The tribunal found that the claimant had already provided 3 pages of medical disclosure in 2022 and a further 7 medical documents in 2023, including evidence from her GP, a counselling psychologist and a consultant psychiatrist, together with a detailed disability impact statement. It held that those materials already showed diagnoses over a number of years and relevant consultations during the period in issue, and that the Occupational Health report added little. Although the judge said the claimant should have remembered the report and sought it earlier, he accepted that she had forgotten about it and had been unwell, and concluded that the failure was not unreasonable in context.

The tribunal therefore held that the first limb of the Monaghan test was not met under rule 76(1)(a). It also declined to make a costs order under rule 76(2), finding that the breach had no significant impact because the respondent had two weeks' notice of the report and the late disclosure did not materially alter the evidential picture. The judgment records that the application was decided under the overriding objective and the costs rules, and that the tribunal considered the whole picture before refusing the application.