Mr RA McFarlane v Represented by Mr T McGrade - Solicitor AB 2000 Limited — 2020

The tribunal dealt with the respondent’s post-hearing application for expenses, which had been made on the basis that the claimant had acted unreasonably in bringing and conducting the proceedings. The application relied on the fact that the claimant withdrew her unfair dismissal claim on 24 September 2019, the day before a three-day hearing was due to start, and sought expenses of £8,863.99.

The tribunal set out the chronology it accepted. The claimant’s employment ended on 4 February 2019, her claim was lodged on 23 May 2019, the response was lodged on 25 June 2019, and a hearing was fixed for 25 to 27 September 2019. After a preparatory meeting on 6 September 2019, the claimant’s representative spoke on 11 September 2019 with SL, a former member of the respondent’s HR team who had been involved in the dismissal. Following that discussion, the representative raised concerns that the claimant might face difficulty proving a central issue, namely the reason or principal reason for dismissal.

The tribunal rejected the respondent’s case that the claim had been issued speculatively or solely to obtain settlement. It noted that the ET1 had been drafted by a solicitor and supported by a three-page paper apart setting out why the dismissal was said to be substantively and procedurally unfair. The claimant had attended a preparation meeting, had arranged contact with a potential witness, and had taken steps consistent with proceeding to a hearing.

The tribunal also accepted the claimant’s explanation for withdrawing the claim. It found that, after receiving advice on 11 and 20 September 2019 and considering the likely reduced prospects, the cost of continuing the privately funded case, and the effect of the proceedings on her health, she made a sensible litigation decision. Applying the authorities it cited on expenses, including McPherson and Yerrakalva, the tribunal concluded that the claimant had not acted unreasonably in bringing or conducting the proceedings, so the respondent’s application for expenses was refused and no expenses order was made.