Baskaran v IMTECH Traffic & INFRA UK Ltd

Where an unrepresented party faces an unnotified application for substantial employment tribunal costs, fairness will usually require the costs hearing to be adjourned. The paying party must have a proper opportunity to consider the application and costs schedule, challenge the amount sought, and assemble evidence of means. The matter may then ordinarily proceed by written submissions unless either party seeks an oral hearing.

A tribunal considering costs must assess the whole course of proceedings and identify the unreasonable conduct and its effect. It need not allocate with precision the particular costs caused by each instance of non-compliance.

The Employment Tribunal dismissed the claimant's age and race discrimination claims arising from unsuccessful job applications. At the end of the substantive hearing, it made an unnotified costs order requiring him to pay £10,000 towards the respondent's costs of £28,007.04. It later confirmed its decisions on review.

The claimant appealed both the dismissal of his claims and the costs order. He alleged procedural unfairness in the substantive hearing and challenged the basis, procedure and amount of the costs award. The central issue on the costs appeal was whether the tribunal had adopted a fair procedure when dealing immediately with a substantial costs application against an unrepresented claimant.

1. The appeal was allowed in part. The appeal against dismissal of the discrimination claims was dismissed. The Employment Appeal Tribunal upheld the tribunal's jurisdiction and decision in principle to make a costs order, but remitted the quantum of that order for fresh consideration.

2. The complaints concerning late disclosure, witness statements and an alleged application for an adjournment disclosed no arguable error of law. The claimant had not established that he applied for an adjournment. The tribunal had ensured that he could read the material and was able to address the issues. Jones v Corbin T/A Boo was fact-specific and did not assist.

3. Under rules 40(2) and 40(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the tribunal was entitled to order costs. It had assessed the circumstances as a whole. Its findings included the claimant's failure to put discrimination allegations to witnesses, indiscriminate applications for posts for which he was unsuitable, failure to establish a prima facie case, and non-compliance with case-management orders. It was unnecessary to identify precisely the costs attributable to each failure.

4. The procedure on quantum was defective and unfair. Although the tribunal could have regard to means under rule 41(2), it gave no advance notice of the application, supplied the costs schedule only at the hearing, and expected an unrepresented claimant to give immediate evidence of means. In a case of this kind, especially where substantial costs are sought or the party has difficulty with English, the tribunal should usually adjourn. The paying party must have adequate time to address the schedule and provide material about means. If means are taken into account, the tribunal should make and explain findings on ability to pay and their effect on the award.

5. The review hearing did not remove the original procedural defect. The amount of any costs award was remitted to the same tribunal for reconsideration. The tribunal's jurisdiction to make a costs award was not reopened.

• Employment Appeal Tribunal: allowed the costs appeal only as to quantum and remitted that issue; dismissed the substantive appeal: [2013] UKEAT 0018_13_1807.
• Employment Tribunal, Southampton: dismissed the age and race discrimination claims and ordered the claimant to pay £10,000 towards costs. On review, it confirmed those decisions.