Purohit v Hospira UK Ltd

Under the Employment Tribunal Rules 2004, an Employment Judge may seek a respondent’s written comments when conducting the preliminary consideration of a review application. The procedure under rule 35(3) is not prescribed and may be managed using the general case-management power.

A costs order may be made at any stage if the rule 40(3) criteria are met. The purpose of rule 38(9) is to give the paying party a fair opportunity to oppose costs. A failure by the Secretary to send formal notice will not invalidate an order where the party had actual notice, made substantial written submissions and suffered no prejudice.

The Claimant’s claims of unfair dismissal, protected-disclosure detriment, race discrimination and wage deductions had failed. The Employment Tribunal made a costs order of £10,000. The Claimant then made a lengthy application for a review of the substantive judgment.

Employment Judge Smail invited comprehensive written comments from the Respondent. He rejected the review application and ordered the Claimant to pay £2,000 towards the Respondent’s costs of responding to it. The Claimant appealed the costs order, contending that he had not received rule 38(9) notice and that the Judge lacked power to seek the Respondent’s response at the preliminary review stage.

1. Appeal dismissed. The Employment Judge made no error of law and did not exercise the costs discretion wrongly.

2. Rule 38(9) of the Employment Tribunal Rules 2004 protects the affected party’s right to be heard. Although the Secretary had not sent the prescribed notice, the Claimant had received the Respondent’s applications and costs material from its solicitors. He had also made three substantial written responses on costs. The procedural failure was therefore technical, caused no prejudice and did not invalidate the order.

3. Rule 35(3) does not prescribe how preliminary consideration of a review application must be conducted. Given the length and nature of the application, the Judge was entitled to use the general power in rule 10 to request the Respondent’s comprehensive comments. The Respondent was entitled to comply with that request.

4. Costs may be awarded at any stage of proceedings once the rule 40(3) criteria are satisfied. A costs application arising from a respondent’s invited response to a review application could therefore be determined at the preliminary stage, provided the party against whom costs were sought had the required opportunity to respond.

5. The Judge was entitled to regard the review application as misconceived or unreasonable. The challenge was, in substance, an allegation of perversity, for which the appellate threshold is high: [2002] IRLR 634. The Judge had adopted a proportionate approach and awarded only part of the costs claimed.

6. The Claimant’s oral application to review this Appeal Tribunal judgment was also dismissed. Rule 36(2) did not assist him because it concerns a case where no review application has been made.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal against the £2,000 costs order.
• Employment Tribunal: Employment Judge Smail rejected the Claimant’s review application and ordered him to contribute £2,000 towards the Respondent’s costs of commenting on it. The underlying substantive tribunal judgment had already dismissed the claims and awarded £10,000 costs.