Turning Point Scotland v Perry & Anor

Withdrawal of an employment tribunal claim ends the proceedings for the purposes of a costs or expenses application. A respondent need not first obtain dismissal under rule 25(4) before seeking expenses, since rule 25(3) expressly preserves costs proceedings.

A legally represented claimant must sensibly investigate the factual and legal basis of a national minimum wage claim. Persisting without checking hours, pay, or the effect of clear contrary authority, and failing to answer justified requests for specification, may make both the bringing and conduct of proceedings misconceived and unreasonable under rule 40(3).

Two employees presented conjoined claims alleging that sleepover work entitled them to national minimum wage arrears and, in one case, an unspecified contractual remedy. Their employer denied any underpayment, sought particulars, gave a costs warning, and later obtained an order requiring information. The employees withdrew their claims following counsel’s advice.

The Employment Tribunal refused the employer’s application for expenses. It held that withdrawal without dismissal had not determined the case for rule 38(2), and that the claims had not been shown to be misconceived or unreasonably pursued. The employer appealed.

The central issues were whether expenses could be awarded after withdrawal without dismissal, and whether the claims’ institution and conduct met the rule 40(3) threshold.

1. Appeal allowed. Withdrawal under rule 25(3) brought the particular proceedings to an end, while expressly preserving proceedings concerning costs or expenses. The Employment Judge wrongly conflated a claim’s subject matter with the proceedings in which it was advanced. A fresh claim may be possible where there has been no dismissal, but that does not mean the withdrawn proceedings remain undetermined.

2. Rule 38(2) did not require a judicial merits determination or an order dismissing the claim. Its purpose was to distinguish a legally represented party’s entitlement to seek costs or expenses from an unrepresented party’s entitlement to seek preparation time. The claimant’s decision to withdraw was itself capable of ending the proceedings. There was no basis for requiring a respondent to incur further time and expense by seeking dismissal under rule 25(4) before applying for expenses.

3. The only reasonable conclusion on the evidence was that the claims were misconceived, unreasonable to raise, and unreasonably conducted. A claimant alleging national minimum wage underpayment ought to know, from personal knowledge and payslips, the hours worked and pay received. Where represented, the lawyers should investigate those obvious matters before presenting the claim and promptly respond to clear challenges and costs warnings.

4. The claimants did not establish that they had checked the factual basis of their claims, specified their alleged hours or pay, or produced the promised schedules. The pleaded hours and salaries themselves raised serious questions about any minimum wage shortfall; one claim also raised an unaddressed time-bar issue. The governing sleepover authorities showed that the national minimum wage was not automatically payable for the whole on-call period, but only for time when the worker was awake for the purpose of working.

5. The Employment Tribunal was directed to find the claimants liable in the employer’s expenses and the cases were remitted for determination of the amount under rule 41.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted assessment of the expenses award.
• Employment Tribunal, Dundee: Judgment registered on 10 August 2011 refused the employer’s application for expenses. No citation was stated in the judgment.