ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Determination of Application, at the instance of the v Represented by Mr S Healey, Solicitor Deer Park Golf & Country Club Ltd and 1 other — 2019

The claimant applied for an expenses order limited to the costs incurred in opposing the respondent's unsuccessful application for reconsideration of the tribunal's judgment of 17 July 2018. The application was brought under Rules 75(1)(a) and 76(1)(a) and/or 76(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The respondent opposed the application and argued, among other things, that an application for reconsideration was a legitimate part of the tribunal process and that the expenses application was not competently brought on the grounds advanced.

The tribunal held that the application was competent under Rule 76(1)(a) because the phrase covering the way proceedings are conducted was capable of including the making and insisting upon a Rule 70 reconsideration application. It was not persuaded by the claimant's attempt to bring the matter within Rule 76(1)(b) through the definitions of claim and complaint, describing that route as strained and unnecessary. The tribunal therefore proceeded to consider whether the respondent had acted unreasonably in bringing and insisting upon the reconsideration application.

On the merits, the tribunal accepted that one of the three grounds advanced in the reconsideration application was, in retrospect, without reasonable prospect of success. However, it held that the application as a whole was not one that had no reasonable prospect of success. The other grounds were not shown to lack any reasonable prospect, including the argument that reconsideration was necessary in the interests of justice and the separate challenge to the section 207A uplift. The tribunal treated Rule 72(1) as requiring refusal only where there is no reasonable prospect of the original decision being varied or revoked, and it concluded that that threshold was not met for the application overall.

The expenses application was therefore refused. The tribunal added that, even if its discretion had been awakened, it would not have made an award in the circumstances because the claimant's costs in opposing the reconsideration application would largely have been incurred in any event. It noted that an account prepared in accordance with the sheriff court fees table, in the sum of £1,281.66, would have been reasonable in principle subject to vouching and any VAT issue, but no expenses order was made.