Mr David McAndrew v Straight Edge Manufacturing Limited — 2024

This is a judgment on costs only. The substantive Employment Tribunal claims, brought on 29 April 2022 by Mr David McAndrew against Straight Edge Manufacturing Limited, were withdrawn by the Claimant on 15 December 2023, shortly before the final hearing listed for 2-5 January 2024. The Respondent applied on 18 December 2023 for a costs order under rule 76 of the 2013 Employment Tribunal rules, contending that the Claimant had acted unreasonably by pursuing concurrent proceedings in the Employment Tribunal and the High Court arising from the same factual matters concerning Hand-Arm Vibration Syndrome and the alleged conduct of a work colleague, and by continuing those proceedings after the High Court claim had progressed.

Regional Employment Judge Burgher applied the three-stage approach in Millan v Capsticks Solicitors LLP and considered McPherson v BNP Paribas and Mindimaxnox LLP v Gover. The Judge found that the Claimant had not acted unreasonably in any of the three respects advanced by the Respondent: bringing parallel claims in the Employment Tribunal and the High Court, continuing those claims after completion of the pre-action protocols in May 2023, or withdrawing the Tribunal claim on 15 December 2023. The Judge noted that certain claims (including disability discrimination, disability harassment and constructive unfair dismissal) could only be brought in the Employment Tribunal, that strict time limits applied, and that the withdrawal was a sensible litigation decision that ultimately saved costs.

The Judge added that, had the threshold of unreasonable conduct been met, he would in any event have declined to exercise his discretion to award costs, having regard to the Respondent's approach to the stay application and the without prejudice correspondence (including a drophands offer made on 23 November 2023). The Respondent's application for costs accordingly failed and was dismissed.