Mr M Waithe v Barts Health NHS Trust — 2019

The tribunal recorded that all of the claimant's claims had previously been dismissed, except for a contractual sick pay claim, and that the earlier preliminary hearing had made a clear determination that the claimant was not an employee of the respondent. The respondent later invited the claimant to withdraw the remaining claim, stating that it had no reasonable prospects of success and warning that a costs application would follow if it was continued.

The claimant did not confirm withdrawal until shortly before the scheduled hearing. In deciding the costs application, the tribunal found that the remaining contractual sick pay claim had no reasonable prospects of success because the claimant had no contractual entitlement to occupational sick pay under his contract or the NHS Agenda for Change provisions, and had not provided a sick note certifying that he was unfit for work.

The tribunal found that the claimant ought to have known after the preliminary hearing determination that the remaining claim had no reasonable prospects of success. It accepted parts of the respondent's costs schedule as reasonable, discounted some claimed costs, and ordered the claimant to pay the respondent's costs in the sum of £3,087.64.