Ms J Lowther v Trade Mark Owners Assoc Limited and 3 others — 2024

Ms Lowther had brought complaints including disability discrimination, sex discrimination, victimisation, payments due and protected interest disclosure detriment against four respondents, but this decision was confined to a costs application after the hearing listed to consider TUPE and disability status was relisted as a short case management hearing. Employment Judge Reed set out the tribunal's costs jurisdiction under rules 76 to 84 of the Employment Tribunal Rules and emphasised that costs in the Employment Tribunal are compensatory rather than punitive.

The judge rejected the submission that the 3rd and 4th respondents' delayed concession on TUPE, by itself, met the rule 76 threshold. Although the concession came later than it might have done, the judge accepted that the live issue was whether regulation 8(7) of the TUPE Regulations applied, and found the delay was not inordinate or unreasonable in all the circumstances.

The judge did find, however, that the 3rd and 4th respondents acted unreasonably in relation to the 18 January 2024 letter seeking to vacate the hearing. The letter relied on a concession about disability that did not relate to the issue listed for the preliminary hearing, and the earlier correspondence had failed to comply with the June 2023 case management order requiring an explanation of why disability was not accepted at the relevant time. The judge found no evidence about means and no basis to treat the award as punitive, but concluded that a costs order was justified because the respondents' conduct had caused a hearing to be vacated and re-listed.

The tribunal therefore ordered the 3rd and 4th respondents to pay £3,000, which reflected the claimant's counsel's brief fee of £2,500 plus VAT for the preliminary hearing. The order was made on a joint and severable basis. The judgment did not determine the underlying merits of the discrimination, whistleblowing or wage claims.