EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100970/2020 (V) Expenses Judgment per Written Submissions: Members’ Meeting on August 2021 Employment Judge: M A Macleod Tribunal Member: P McColl Tribunal Member: A Grant Robert O’Neill v Limited (in Liquidation) — 2021

The judgment concerned the respondent's application for expenses following an earlier merits judgment which had dismissed the claimant's automatically unfair dismissal claims. The respondent argued that the claimant or his representatives had acted unreasonably by failing to specify the claims properly, by not confirming earlier that a section 100(1)(c) Employment Rights Act 1996 claim was not being pursued, and by failing to withdraw after a costs warning letter.

The Tribunal found that the pleadings were broad and not particularly helpful, but were sufficiently specified to allow the respondent to defend the case successfully, including the issue of whether video footage was relied on as a protected disclosure. It was not persuaded that counsel acted unreasonably in abandoning the section 100(1)(c) part of the claim after hearing the claimant's evidence, nor that the claimant's concessions in cross-examination showed unreasonable conduct.

The Tribunal also rejected the contention that the claims had no reasonable prospect of success. It treated the costs warning letter as a legitimate tactical intervention rather than objective advice, and found that the claimant had been legally advised and was challenging dismissal in connection with a close and alarming workplace incident. The expenses application was refused.