Purohit v Hospira (UK) Ltd & Anor (Practice and Procedure: Costs)

An Employment Tribunal has a wide discretion whether, and how, to take a party’s means into account when making a costs order. However, in deciding whether to exercise that discretion, it must properly consider material evidence of means placed before it. A statement that a party has no savings or investments cannot be treated as absent information.

A costs decision may therefore be remitted on the limited question of means while the substantive reasons for awarding costs remain undisturbed.

The claimant appealed against an Employment Tribunal costs order requiring her to pay the respondents £8,000 after her discrimination, victimisation and harassment claims had failed.

Three issues remained after a preliminary appeal hearing: whether the Tribunal had properly considered her means; whether it had erred in refusing a preparation time order sought by her representative; and whether the costs appeal could reopen an earlier refusal to admit fresh evidence. The claimant also sought late permission to amend her grounds to challenge the procedure for the costs application.

1. Appeal allowed in part. The Employment Tribunal’s statement that it had not been told about savings or investments was inconsistent with the claimant’s witness statement, which expressly said that she had none.

2. The Tribunal had a wide discretion whether to take means into account and, if it did, how to do so. It nevertheless had to take proper account of material evidence placed before it when deciding whether to exercise that discretion. The matter was remitted solely for the Tribunal to reconsider the claimant’s means, including her evidence that she had no savings or investments, and then to decide afresh whether and how to take means into account.

3. All other reasons supporting the costs order remained in force. The Tribunal made no error of law in refusing the preparation time application. It was entitled to conclude that the application had not articulated a proper basis or identified costs attributable to late disclosure.

4. The fresh-evidence ground did not challenge the costs judgment. It sought instead to reopen an earlier review decision against which no appeal had been brought in time, and could not succeed.

5. Permission to amend was refused. The directions given when the costs application was made created no appearance of partiality or unfairness and sufficiently complied with rule 38(9) of the Employment Tribunal Rules of Procedure.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s costs judgment allowed only to require reconsideration of the claimant’s means.

• Employment Tribunal, Watford: Ordered the claimant to pay the respondents £8,000 in costs on 27 September 2011.