Alexander Rostron v SENAD Ltd — 2024

This judgment determines a costs application by the respondent following the strike-out of the claimant's unfair dismissal claim on 6 August 2025. The earlier judgment had concluded that the claimant lacked the qualifying period of continuous employment (only 11 months from 19 February 2024 to 20 January 2025) required by s.108(1) Employment Rights Act 1996; an earlier period of employment with the respondent had been broken by approximately five-and-a-half months working for a separate employer. The claim therefore had no reasonable prospect of success and was struck out under rule 38.

The Employment Judge applied the two-stage test for costs under rules 74 and 76 of the Employment Tribunal Procedure Rules 2024. On the objective threshold test, the claim had no reasonable prospect of success from the outset because the qualifying criteria in s.108 ERA 1996 was not met. On the subjective limb, the judge found the claimant knew (from at least 28 April 2025 when the respondent served a full ET3 setting out the relevant dates) that the claim had no reasonable prospect of success, and continued to pursue it - amounting to unreasonable conduct. The respondent had also written 'drop hands' offers on a without-prejudice-save-as-to-costs basis on 13 May 2025 and 21 July 2025.

In exercising discretion (noting costs are an exception in the Employment Tribunal, citing Gee v Shell UK Ltd [2023] IRLR 82), the judge took into account the claimant's status as a litigant in person and his ability to pay (he was unemployed for most of 2025 then took a £27,300 role from 11 August 2025, living from savings and family loans). The respondent had sought £6,424 (excl. VAT). The judge ordered the claimant to pay the respondent £1,000 in costs.