Employment Judge: M A Macleod v Natalie Valente McEwan Fraser Services Limited — 2023

This judgment concerned the respondent's application for expenses after the claimant had presented disability discrimination, harassment and victimisation complaints and then withdrew them on 14 February 2023. The underlying claims had been dismissed under Rule 52 by a separate judgment dated 17 February 2023. The respondent applied under Rule 76(1), saying the claim had been brought vexatiously and, in any event, had no reasonable prospect of success, and sought £3,400 in expenses.

The tribunal identified the governing approach by reference to Rule 76(1) and the authorities it cited, including Beat v Devon County Council, Power v Panasonic (UK) Ltd, McPherson v BNP Paribas, Marler Ltd v Robertson and Barnsley Metropolitan Borough Council v Yerrakalva. It recorded that expenses orders in the Employment Tribunal remain exceptional, that the exercise is a two-stage one, and that the tribunal must look at the whole picture when deciding whether conduct was unreasonable.

On the facts available, the tribunal did not accept that it could find the claimant had acted vexatiously in bringing the proceedings. The respondent's allegation that she had been "plotting" to bring a claim, based on asserted information from her landlord, was disputed and unsupported by evidence before the tribunal. The tribunal noted that it had heard no evidence on the merits, that the claimant maintained she had evidence to support her disability-based allegations, and that whether she could prove them would depend on the evidence at a merits hearing.

The tribunal also rejected the argument that withdrawing the claim amounted to vexatious or unreasonable conduct. It noted that the claimant withdrew her claim after the preliminary hearing and before the next case management hearing, said she did so because of concern for her health, and had already engaged with the tribunal process. The tribunal further held that it could not say the claim had no reasonable prospect of success on the material before it, because the case turned on disputed facts that had not been heard and the respondent had not sought strike out while the claim was live. The respondent's application for expenses was therefore refused.