Mr David Farr v Cycling Score Limited — 2021

This judgment of 13 May 2021 concerned the respondent's application for a costs order arising from the claimant's second claim, number 3213053/2020. The second claim had already been struck out in a reserved judgment sent on 3 February 2021, whereas the claimant's first claim, number 3202303/2020, had been allowed to proceed. The costs application was dealt with on the papers, with both parties agreeing to that course.

Employment Judge Barrett held that the threshold in rule 76 was met. The tribunal found that the second claim had no reasonable prospect of success because the constructive unfair dismissal complaint was misconceived: the claimant had been expressly dismissed on 29 May 2020, so he could not later rely on a resignation as the basis of constructive dismissal. The tribunal also found that the second claim was presented almost two months out of time, with no basis for extending time, and that it was unreasonable for the claimant to institute and pursue claims he knew or ought to have known were time-barred and, in relation to constructive unfair dismissal, without merit.

The tribunal did not find the claimant's conduct vexatious. It accepted that the second claim arose out of events including the respondent's continuing to claim furlough money in the claimant's name after dismissal, and the claimant's mistaken understanding that a lump sum payment of £6,010.52 on 4 August 2020 represented furlough money that should have been paid to him. It also rejected the respondent's duplication and Henderson v Henderson arguments as insufficient to show unreasonable conduct for costs purposes. Although there had been costs warnings and the respondent had incurred extra expense, the tribunal declined to exercise its discretion to award costs because the claimant was a litigant in person and the respondent had itself acted unlawfully in claiming furlough money in the claimant's name after dismissal.