Richard Brown v Respondent — 2023

This was a costs judgment on the claimant's application for a preparation time order, not a liability decision on the underlying employment claims. The tribunal recorded that the claimant argued the respondent's response had no reasonable prospects of success and that the respondent had acted unreasonably. The application was dealt with on the papers by Employment Judge Liz Ord and was refused on 6 April 2023, with the judgment sent to the parties on 11 April 2023.

The tribunal set out rule 76(1) of the Employment Tribunals Rules of Procedure 2013 and noted that a costs order or preparation time order is exceptional rather than routine. It referred to the three-stage approach in Haydar v Pennine Acute NHS Trust, the guidance in Barnsley Metropolitan Borough Council v Yerrakalva and McPherson v BNP Paribas on assessing the nature, gravity and effect of conduct, and the tests in Opalkova v Acquire Care Ltd and Radia v Jefferies International Ltd on whether a response had no reasonable prospects of success.

On the claimant's complaints about missing evidence, the tribunal found that the likely issue was the selection criteria for alternative employment and the automated wiping of rejected applications. It said the absence of those documents was unfortunate but caused by the automated system, did not prejudice the claimant, and did not amount to unreasonable conduct. The tribunal also held that the respondent was not obliged to engage with ACAS before the claim was presented, that the offer of £500 in settlement was a negotiating tactic rather than unreasonable conduct, and that the respondent's correspondence about recovering costs was acceptable in litigation.

The tribunal concluded that the respondent had an arguable case that merited a full hearing, and that the fact it was unsuccessful at the liability hearing did not justify a preparation time order. It also rejected the submission that the respondent's alleged failure to follow its own policy made the defence unmeritorious, saying that was an arguable matter dealt with at the liability hearing. Overall, the tribunal found neither unreasonable conduct nor a response with no reasonable prospects of success, so the application failed at the first stage and no further stage of the costs analysis was required.