Mr Q Hawkins v Cumbria, Northumberland, Tyne & Wear Foundation Trust — 2021

This was a judgment on the respondent's application for costs after the claimant withdrew his underlying disability discrimination claim at the end of the substantive hearing on 28 January 2021. The tribunal recorded that it was not making merits findings on the discrimination claim and expressly said it was not deciding whether the claimant was a disabled person within section 6 of the Equality Act 2010.

For the purposes of the costs application, the tribunal accepted the respondent's evidence on the key factual dispute. It found that the claimant had applied for a band 2 Administration Assistant post at the respondent's Oxford Centre, that the interview was for that post, and that the respondent took steps to accommodate his altophobia by interviewing him in a ground-floor room. It rejected the claimant's account that he had been interviewed for a different Whitley Bay post, and also rejected his evidence that he had been told he scored highest among five interviewees.

The tribunal found that the respondent's three costs warning letters, dated 20 August, 14 October and 17 December 2020, were written in clear and professional terms. It did not find that the claim had no reasonable prospect of success at the outset, and it did not treat the claimant's conduct in bringing the claim as unreasonable. However, it held that by 17 December 2020, after receiving the respondent's witness statements and supporting documents, the claimant should have appreciated that the core basis of his case lacked foundation. Continuing the claim after that point was unreasonable within rule 76(1) of the Employment Tribunals Rules of Procedure 2013.

The tribunal therefore exercised its discretion to make a costs order for the respondent's legal costs incurred from 17 December 2020 onwards. It accepted the schedule showing £4,624.50 plus VAT of £911.70, totalling £5,536.20, and ordered the claimant to pay £5,536 on the basis that the NHS Trust could not recover VAT. It noted that if VAT were recoverable, the net amount would be about £4,624.