Kenbata v Unison

A discrimination claim may properly be struck out where, even assuming the claimant’s pleaded facts, they do not support an inference of unlawful discrimination or establish a detriment. A comparison with treatment of a white union member, without further material facts, did not suffice.

A vexatious and hopeless claim may trigger the Employment Tribunal’s costs jurisdiction, particularly where it was brought for an improper purpose. The discretion remains non-punitive. Where a tribunal elects not to consider the paying party’s limited means, it should give reasons. An appellate tribunal may, with the parties’ consent, determine costs itself and reduce them to reflect ability to pay.

The claimant, a member of Unison, alleged race discrimination under section 57 of the Equality Act 2010. He contended that a union officer had, without his authority, raised the possibility that his failure to obtain a post in his employer’s restructuring exercise was race-related.

Employment Judge Mahoney struck out the claim as having no reasonable prospect of success and ordered the claimant to pay Unison’s costs of £2,160 inclusive of VAT. The claimant appealed both the strike-out and the costs order. The central issues were whether the pleaded claim disclosed a prima facie case and whether the Employment Judge had adequately addressed the claimant’s means when making the costs order.

1. The appeal was allowed in part. The appeal against the strike-out failed. The appeal against costs succeeded because the Employment Judge gave no proper reasons for declining to take the claimant’s limited means into account.

2. The strike-out was plainly correct. The claimant had himself raised possible race discrimination before and after the union officer’s conversation. On the assumed facts, the officer’s assumption that race discrimination might be relevant was correct. Raising that possibility on behalf of a black member who had repeatedly raised it himself could not constitute a detriment.

3. Applying Madarassy v Nomura International plc [2007] ICR 867, the suggested contrast with a white British union member did not, without additional facts, establish a prima facie case of unlawful discrimination. The claim therefore had no reasonable prospect of success.

4. The Employment Judge was entitled to characterise the claim as vexatious in the sense described in Marler v Robertson [1974] ICR 72. The unchallenged finding was that the claim was hopeless and had been brought for the improper purpose of exploring whether it might improve the claimant’s case against his employer.

5. Under Rule 41(2) of the 2004 ET Rules, the tribunal had a discretion whether to consider means. Vexatiousness triggered the costs discretion but did not automatically justify disregarding means. Costs were not punitive. Following Jilley v Birmingham & Solihull Mental Health NHS Trust and Arrowsmith v Nottingham Trent University [2012] ICR 159, reasons were required for the decision not to consider ability to pay.

6. With both parties’ consent, the Employment Appeal Tribunal determined costs rather than remitting the issue. A costs order remained appropriate, but it was reduced to £500 exclusive of VAT. Unison could seek the VAT element if it was not registered for VAT.

• Employment Appeal Tribunal: allowed the appeal on costs and varied the order; dismissed the appeal against strike-out: [2014] UKEAT 0625_13_2606.
• Employment Tribunal, Watford: Employment Judge Mahoney struck out the race-discrimination claim and ordered the claimant to pay £2,160 inclusive of VAT in costs. The judgment was promulgated on 28 January 2013.