Mr M Foster, Solicitor For the v Mr P Clarke, Consultant — 2019

This was a costs judgment dated 17 June 2019 following a hearing on 4 June 2019 before Employment Judge Balogun at London South. The Respondent applied to strike out the Claimant's pregnancy discrimination and constructive dismissal claims. The tribunal refused the strike-out application on both heads, holding that neither claim was suitable for determination at that preliminary stage.

On the pregnancy discrimination complaints, the Claimant identified four alleged acts said to have occurred after 23 February 2018, including two alleged acts on 11 April 2018: telling her she was not entitled to holiday pay and would have to work under new contract terms on her return from maternity leave, and threatening formal disciplinary action on her return to work. The tribunal said those matters were, on their face, in time for limitation purposes, and that any argument about earlier acts forming a continuing course was better considered at the full hearing after evidence had been heard.

On the constructive dismissal claim, the Respondent argued that the Claimant had agreed a variation to her contract and therefore had no reasonable prospect of success. The Claimant denied that there had been agreement and had not signed the new contract. The tribunal noted the Claimant's email of 25 September 2017 asking whether she should sign a draft contract, and the Respondent's reply of 26 September 2017 saying there had been no changes and that signing and returning the draft copy would be fine. The tribunal held that it remained open to argument whether the variation had been agreed, so the issue could not be resolved on strike-out.

The Claimant applied for costs under rule 74 of the Employment Tribunal Procedure Rules 2013. The tribunal found the Respondent had acted unreasonably in pressing on with the strike-out application after receiving a costs warning on 9 April 2019, which enclosed the four discrimination allegations and invited withdrawal. It found the threshold for a costs order was met and ordered the Respondent to pay £640, being the Claimant's liability under a conditional fee arrangement for 25% of legal costs and 100% of travel costs incurred in attending the hearing.