Ms D Mocorro v Healthcare Homes LSC Limited — 2022

This was a reserved costs judgment following the 26 February 2024 preliminary hearing. The respondent applied for costs after the claimant's solicitor, on 9 January 2024, applied to amend the claim so that the respondent's decision to investigate, discipline and dismiss the claimant would be pleaded as unfavourable treatment arising from disability. The tribunal recorded that the claim had first been presented in September 2021, that the claimant was unrepresented at the 28 March 2022 case management hearing and when she later provided further particulars, and that Mr Street was only formally on the record from 1 December 2023.

Applying ET Rule 76(1)(a), the tribunal considered whether the late amendment application amounted to unreasonable or disruptive conduct. It referred to the high threshold for costs orders and cited Gee v Shell UK Limited, McPherson v BNP Paribas (London Branch), Barnsley Metropolitan Borough Council v Yerrakalva, Dr Osonnaya v Queen Mary University of London, AQ Ltd v Holden, Rule 84, and Haydar v Pennine Acute NHS Trust. The tribunal held that the late amendment did not cross that threshold, noting that the original omission was unexplained, the amendment was described as minor, and the consequences of the application were not known when it was made.

The tribunal also placed weight on the fact that it had vacated the final hearing and listed a further preliminary hearing without consulting the parties, before the respondent had responded to the amendment request. It accepted the respondent's point that the hearing was moved at additional expense, but said that did not make the claimant's or her representative's conduct unreasonable. It added that, even if the threshold had been met, it would not have exercised its discretion to award costs because the tribunal's own decision to vacate the final hearing was the reason for the additional expense. The respondent's costs application was refused.