Claimant v Mrs A Loizou (removed as a Respondent by Tribunal order) and Little Adventures Play Centre Ltd (dissolved 22nd November 2021) — 2022

This judgment determined the First Respondent's application for costs only. The Tribunal applied the usual approach under Rules 76 to 84 of the Employment Tribunal Rules 2013, noting that costs in the Employment Tribunal are exceptional and that it had to consider whether a Rule 76 ground was made out before exercising any discretion. It also took into account the authorities cited by the parties, including Yerrakalva v Barnsley Metropolitan Borough Council, McPherson v BNP Paribas, and AQ Ltd v Holden, together with the Presidential Guidance on costs.

On the question whether the Claimant acted unreasonably in naming and retaining the First Respondent, the Tribunal found that it was not unreasonable when the claim was presented, because the claim form referred both to the First Respondent and to the Second Respondent as the Claimant's employer, the Claimant was unrepresented, and she did not understand the separate legal personality of the company. After the First Respondent and the Tribunal corresponded about who the correct respondent was, the Tribunal found it was reasonable for the Claimant to assume both respondents remained in issue, especially after the Tribunal's letter of 7 August 2021 said the matter would be decided at the 1 December 2021 hearing. The Tribunal also held that the Claimant did not act unreasonably in failing to withdraw the claim against the First Respondent after the without prejudice costs letter of 3 November 2021, because she had already been told by the Tribunal that the respondent-removal issue would be addressed at the hearing.

The Tribunal accepted that the Claimant's conduct at the hearing on 1 December 2021 was unhelpful and disorganised when she relocated to take the call from her car without the bundle after being called into work. However, it found that this had limited practical effect on the First Respondent, because the First Respondent was removed by Tribunal order and would not have to attend again. Taking all the circumstances together, the Tribunal held that the high threshold for a costs order was not met and refused the application. No order for costs was made against the Claimant.