Mr Alan Morrow v Totalserve (Wholesale) Ltd — 2023

Mr Alan Morrow was employed by Totalserve (Wholesale) Ltd as a delivery driver from 1 February 2013 to 7 December 2021 and was dismissed for gross misconduct after a road traffic incident on 3 November 2021. He presented an unfair dismissal claim, saying the disciplinary process was flawed and that the road had collapsed, while the respondent relied on photographs and later a Fire Service report which said there was no evidence of collapse and the vehicle appeared to have gone into a side ditch.

The unfair dismissal claim was withdrawn on 6 February 2023, shortly before the final hearing listed for 15 February 2023. The respondent then sought costs, saying the claimant had acted unreasonably in bringing and conducting the proceedings and that the claim had no reasonable prospects of success. The tribunal heard the costs application in the claimant's absence after attempts to contact him, and after noting the hearing notice, the earlier refusal of a postponement request, and the claimant's non-attendance.

The tribunal held that the claim was not brought vexatiously or unreasonably at the outset, and it was not satisfied that the claim had no reasonable prospects of success when it started. However, it found the claimant acted unreasonably once the Fire Service report had been disclosed on 24 June 2022, because that report undermined the factual basis of the claim and he was invited to withdraw by 1 July 2022 with an assurance that costs would not be pursued if he did so. The tribunal also found it unreasonable that he did not properly engage with the respondent's further warning letter of 6 October 2022, requested a settlement on 12 October 2022 without addressing the evidence or providing the jury service information requested, and then waited until 6 February 2023 to withdraw, close to the final hearing.

The tribunal further found unreasonable conduct in the costs proceedings themselves, including the late adjournment request and the claimant's failure to attend or provide information about means. Having regard to the whole picture and the respondent's significant unnecessary expense after 1 July 2022, the tribunal ordered the claimant to pay £8,779.50 inclusive of VAT in costs.