Member S Gray Tribunal Member S Currie Ms N Falenta v Heriot-Watt University — 2019

This judgment dealt with the respondent's application for expenses under Rule 75 after the claimant's harassment claim had been dismissed in a separate judgment. The respondent said the harassment claim had no reasonable prospects of success and relied on an expenses warning dated 25 July 2019. The claimant resisted the application, arguing among other things that no deposit order had been made, that the warning letter did not include a breakdown of expenses, that she had needed more time to seek free legal advice, and that she was a litigant in person with English not her first language.

The tribunal set out the Rule 75 and Rule 76 framework and reminded itself that expenses in the employment tribunal are exceptional rather than routine. It referred to the overriding objective and authorities including Barnsley Metropolitan Borough Council v Yerrakalva, AQ Ltd v Holden and Vaughan v London Borough of Lewisham. It accepted that a warning letter was relevant but not determinative, and noted that the question was whether it was appropriate in all the circumstances to make an award.

Although the tribunal described the matter as difficult and acknowledged that the respondent had been wholly successful in defending the harassment claim, it concluded on balance that an award of expenses was not appropriate. It found that part of the claimant's case did require consideration, that the claimant had at least a statable jurisdictional argument, and that the claim was not without merit. Taking account of her self-representation, lack of independent legal advice and first-language point, the tribunal refused the respondent's application. The respondent had said it had incurred £11,329.90 in expenses and a further £5,173 after the warning deadline, but no expenses were awarded.