Claimant v Highland Fuels Ltd and J MacPhee c/o Highland Fuels Ltd: S/4101080/2015 — 2019

A written judgment had already been issued on 10 November 2015 after a 12-day hearing concluding on 29 July 2015 and a private day on 30 September 2015. That judgment dismissed the underlying claims. After the claimant's unsuccessful appeal to the Employment Appeal Tribunal, the respondents renewed an application for expenses. The 2019 hearing on that application was dealt with by written representations before a reconstituted tribunal panel; Mr Mackie did not sit on the application because of the circumstances of the appeal.

The respondents argued that the claimant had acted vexatiously or otherwise unreasonably in bringing and conducting the case, including by advancing allegations they said were false and by giving evidence and cross-examining in a way that misled the tribunal. They relied in particular on the allegation of a serious sexual assault said to have occurred on 11 September 2014, and sought an award of £20,000. The claimant contended that the threshold for a costs order had not been met, relied on HCA International Limited v May-Bheemul and Daleside Nursing Home Limited v Matthew, and pointed to evidence that her outlays exceeded her monthly income and that she had debts of about £2,500.

The tribunal accepted that the central allegation of sexual assault was untrue, and that much of the claimant's evidence was incredible, but it did not find that she had embarked on a planned cynical attempt to mislead the tribunal. It considered that she and her mother had rehearsed matters in their heads, that she had become carried away with the process, and that she may have lost sight of what had actually happened. The tribunal also took into account its view that the respondents' handling of the grievance had been 'shambolic' and that better handling might have avoided tribunal proceedings. On that basis it held that the Rule 76 threshold for an expenses order was not met, and it refused the respondents' application.