Claimant v F Wright Ltd T/a Trouw Nutrition GB — 2023

This was a paper determination on the respondent's application for costs after Mr Heath withdrew his claims shortly before the remote preliminary hearing listed for 31 March 2023. The tribunal found that the respondent had instructed counsel to attend, that the claimant was aware of the hearing date well in advance, and that there had been no prior warning of any attendance difficulty. It rejected the claimant's explanation that work commitments and his partner's last-minute inability to assist justified the late withdrawal.

Employment Judge Clark concluded that the claimant's conduct fell within rule 76(1)(a) because the proceedings had been conducted unreasonably, and said it was not necessary to decide whether the conduct was also vexatious. In reaching that view, the tribunal relied on the claimant's earlier engagement with the process, the absence of any request for an adjournment or communication about attendance problems over the preceding months, and the fact that he withdrew without giving the explanation later advanced in response to the costs application.

Having found the costs jurisdiction engaged, the tribunal considered whether to make an order and the claimant's means under rule 84. It accepted that Mr Heath had limited financial means, saying he was paid at national minimum wage level and had experienced weeks without pay, but found that this did not make it unjust to make an order. The tribunal limited the respondent's recovery to the fee for junior counsel attending the preliminary hearing, which it found to be reasonably incurred, reasonable in amount, and proportionate.

The tribunal ordered payment of £700, not the £840 shown on the fee note, because the respondent was VAT registered and the VAT element could be accounted for through its own VAT input tax position. It referred to Raggett v John Lewis plc [2012] IRLR 906 EAT on that point.