ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4114760/2019 Expenses Hearing per Written Submissions Employment Judge: M A Macleod Gillian Wilkinson v Parity Professionals Limited — 2020

The claimant had brought claims of constructive unfair dismissal, wrongful dismissal, and breach of section 44 of the Employment Rights Act 1996. At a preliminary hearing on 21 April 2020, it was put to her that the section 44 and wrongful dismissal claims had no reasonable prospect of success. She accepted that the wrongful dismissal claim should be withdrawn, and the tribunal recorded that it was dismissed. The section 44 claim was later struck out at a hearing on 9 June 2020 on the same no reasonable prospect basis.

The respondent then applied for expenses under Rule 76(1)(a) and (b) of the Employment Tribunals Rules of Procedure 2013, seeking £5,121.20 plus VAT. It argued that the claimant acted unreasonably in persisting with the section 44 claim after warnings from the tribunal and from the respondent's solicitors, and that the claim had no reasonable prospect of success.

The claimant said she had obtained advice from Alun Thomas of Anderson Strathern, who had told her that the claim was "not unstateable", and she said she had felt the respondent's letter was not impartial. The tribunal accepted that it was not unreasonable for her to continue in light of the advice she had received and the position she knew at the time. Although the section 44 claim had been found to have no reasonable prospect of success, the tribunal held that it would not be in the interests of justice to award expenses against an unrepresented party in relation to a technical part of the ERA 1996, and it refused the respondent's application.