Ms J Ete v Royal Pharmaceutical Society of Great Britain Determined on the papers — 2021

This was a costs application determined on the papers by Employment Judge John Crosfill. The claimant had brought claims in the ET1 presented on 29 February 2020 for unfair dismissal under sections 95(1)(c) and 103A of the Employment Rights Act 1996, detriment for protected disclosures under sections 47B and 48 ERA 1996, and direct discrimination because of race and sex. She withdrew all claims on 22 January 2021, and they were later dismissed by a judgment dated 18 February 2021.

The respondent applied for costs under rule 76, arguing that the claims had no reasonable prospects, that the claimant ran a social media campaign attacking the respondent’s equalities position, that she unreasonably refused settlement offers and sought remedies unavailable in the tribunal, and that she delayed withdrawing until just before the preliminary hearing listed for strike out/deposit issues. The tribunal held that the threshold for costs was not met. It could not infer that the claims had no reasonable prospect of success merely because they had been withdrawn, and it considered the claims at least arguable, including the time-limit issue on the earliest incident said to have occurred at a public house during a works drink.

The tribunal also rejected the submissions based on social media, settlement conduct, pleading quality, and the timing of withdrawal. It found insufficient material to conclude that the claimant was acting abusively, vexatiously, or otherwise unreasonably in posting about the dispute, and it held that cash offers up to £4,000 were not an unreasonable basis on which to refuse settlement given the arguable nature of the claims. It accepted that the breakdown in negotiations, including disagreement over a drop-hands settlement and future-claims wording, could reasonably explain the late withdrawal, and it held that the pleadings were not so poor as to make the proceedings unreasonable. The application was refused. The judge added that, had a costs order been made, it would likely have been confined to the preliminary hearing costs and that a £3,000 brief fee would not have been reasonable for a three-hour hearing.