EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100206/2016 Miss T Maxwell v Wheeler Groves Ltd — 2017

Ms Maxwell brought proceedings on 1 February 2016 arising from a short period of employment as an accounts assistant, alleging sexual harassment and unfair dismissal, with the allegations directed in particular at Mr Martyn Wheeler. The case was sisted from 10 March 2016 pending criminal proceedings against Mr Wheeler, who was acquitted on 27 May 2017. No evidence on the tribunal claims was heard, and the judge recorded that there were no findings in fact or on credibility.

On 18 April 2017 the claimant indicated that she intended to withdraw the claim, and it was dismissed in the usual way on 27 April 2017. The respondent then sought an expenses order, arguing that the allegations were wholly untrue and pursued for improper reasons, and relying on rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and authorities including Marler v Robertson, AQ Limited v Holden, Attorney General v Barker, Gee v Shell, McPherson v BNP Paribas and Kapoor v Barnhill Community School. The claimant submitted that the criminal outcome was not determinative, that there was no finding that her evidence had been disbelieved, and that withdrawal at that stage was reasonable.

Applying the expenses provisions, the tribunal held that withdrawal of the claim was not in itself unreasonable and that, taking all the circumstances into account, there was no reason to depart from the general principle that expenses awards are the exception and not the rule. The judge found that the claimant had not acted vexatiously or otherwise unreasonably in bringing or conducting the proceedings, and the respondent’s application for expenses was refused.