Mr. Zuniga v Bartlett Mitchell Limited — 2023

On 9 October 2023, Employment Judge McLaren heard the respondent's application for a wasted costs order under rule 80 against the claimant's representatives. The background recorded by the tribunal was that Mr. Zuniga had worked as a kitchen porter/general assistant at the Priory in Roehampton, was dismissed for gross misconduct after a complaint on 25 May 2021, and had brought claims including direct race discrimination, discrimination arising from disability, failure to make reasonable adjustments, ordinary unfair dismissal and underpayment of wages.

The judgment records that orders made at a preliminary hearing on 21 September 2022, including orders for information relating to the disability claim and other case management directions, were not complied with. A deposit order of £100 had been made in relation to the disability claim. The claimant's representatives later sought a stay so that civil proceedings could be pursued, that application was refused, reconsideration was refused, and the claimant then withdrew all tribunal proceedings on 20 January 2023, the day before the wasted costs hearing.

Applying rule 80 and the authorities in Ridehalgh v Horsefield, Ratcliffe Duce and Gammer v Binns, and Medcalf v Mardell, the tribunal found no abuse of process. It held that the stay application and the later reconsideration application were arguable, that the unclear correspondence did not justify a wasted costs order, and that although the claimant had not complied with directions and had not been ready for trial, the tribunal could not be satisfied that there was nothing the representative could say if not constrained by legal privilege. The tribunal therefore made no wasted costs order and did not go on to consider fairness or causation.