Ms A Zawistowska v Rethink Professional Services Ltd — 2020

This hearing on 31 January 2022 was limited to Rethink Professional Services Ltd's application for costs. The respondent relied on rule 76(1)(a) and (b), saying the claimant had acted vexatiously or unreasonably and that her claims had no reasonable prospect of success. The background was that Ms Zawistowska had brought claims for unlawful deduction from wages, holiday pay and breach of contract. The breach of contract claim had been withdrawn after the tribunal told her the loss of earnings claimed exceeded the £25,000 employment tribunal cap, and she said she then wanted to pursue that claim in the civil courts.

The tribunal accepted that the claimant was a litigant in person and, although legally trained in Sweden, was not an employment lawyer. It accepted her evidence that she did not know about the statutory cap until the preliminary hearing. On that basis, the tribunal held that she acted reasonably in withdrawing the breach of contract claim once she learned of the cap so that she could pursue the full amount she believed was due in the civil courts.

The tribunal accepted that the claimant had made an error by not copying correspondence to Rethink as required by rule 92, which meant the respondent did not know at the same time as the tribunal that she intended to withdraw the claim or had withdrawn it. However, the tribunal did not find that this mistake justified a costs order, and it did not go as far as to find that the disputed email had been fabricated or that the claimant had acted vexatiously. Looking at her conduct overall, the tribunal held that continuing to negotiate with Rethink while also pursuing the civil court route was not unreasonable for a litigant in person. It also found that the claims could not be said to have had no reasonable prospect of success, noting that the employment status issues were complex. The respondent's application for costs was therefore dismissed.