Mr S Harding (Counsel) For the v Respondent — 2024

This was a reserved judgment on the respondent's application for costs after the claimant withdrew his claims shortly before 9.00 am on 7 November 2023, the first day of the listed merits hearing. The claimant had pursued constructive unfair dismissal and a section 38 claim for failure to provide a written contract of employment. The respondent sought costs on the basis that the claimant had acted unreasonably and/or that the claims had no reasonable prospect of success, relying on Rule 76(1)(a) and Rule 76(1)(b).

The tribunal held that the section 38 claim would have been hopeless because a written contract had been supplied months before the hearing. It also accepted that many of the matters relied on for the constructive unfair dismissal claim were historic and that the claim looked weak, but it was not satisfied on the papers before it that the no reasonable prospect of success threshold under Rule 76(1)(b) had been crossed. The tribunal said the evidence on the underlying merits was inconclusive and that it could not fairly conclude that the claim had no reasonable prospect of success.

By contrast, the tribunal found that Rule 76(1)(a) was engaged. It accepted that the claimant had failed to comply with several case management orders made on 16 December 2022, including late compliance with directions on the schedule of loss, list of issues and witness statement. It also found that the withdrawal at 8.54 am on 7 November 2023, without earlier notice, was unreasonable conduct. The tribunal rejected the argument that the respondent's skeleton argument had improperly intimidated the claimant into withdrawing.

Having found unreasonable conduct, the tribunal exercised its discretion to make a costs order. It considered the respondent's evidence that it had incurred more than the amount sought, noted that the respondent applied for £15,000, and accepted the claimant's evidence that his finances were in difficulty. Taking account of ability to pay under Rule 84 and the claimant's likely future income as a consultant, the tribunal ordered the claimant to pay the respondent £5,000 in costs.