Claimant v CityBlock Lettings Ltd — 2023

This judgment determined only the respondent's application for costs under Rules 76 to 78 of the Employment Tribunals Rules of Procedure 2013, heard on the papers by Employment Judge Arullendran on 31 January 2023. The underlying claims had been brought by Mr Peter Byrne and Mr Amila Wijesinghe against CityBlock Lettings Limited under the Working Time Regulations 1998, the National Minimum Wage Act and associated Regulations, and section 1 of the Employment Rights Act 1996, arising from resident warden on-call night work. A third claimant had withdrawn earlier. Mr Wijesinghe withdrew on the evening before the hearing and Mr Byrne withdrew on the morning of the hearing.

Applying the three-stage approach in Milan v Capsticks Solicitors LLP, the tribunal held that it could not say all of the underlying claims had no reasonable prospect of success when presented, and it did not find that the claimants had acted unreasonably in bringing the proceedings. It accepted that, as litigants in person, they had made efforts to obtain legal advice without success. The tribunal also rejected the respondent's reliance on non-compliance with earlier case management orders, finding that those matters were superseded by the telephone case management hearing on 8 March 2022 and were not so serious as to amount to unreasonable conduct.

The tribunal did find unreasonable conduct in the timing of the withdrawals. It held that the claimants should have informed the respondent and the tribunal by the close of business on 28 October 2022, before the respondent, its solicitors and counsel had travelled from Lancaster and Manchester to Newcastle upon Tyne and incurred travel and hotel costs. Although the respondent had claimed £32,356, the tribunal said it was not given a sufficient breakdown of the specific costs incurred on 30 and 31 October 2022 and therefore awarded a global sum of £1,000, including the witness travel cost of £32.40 and the £757.50 costs-application fee. The award was not increased for VAT and was divided equally, so each claimant was ordered to pay £500.