Oppong v Tesco Stores Ltd (Practice and Procedure)

An appellant challenging a costs order on the ground that they were denied a fair opportunity to address their means must substantiate that allegation and identify an arguable error of law in the tribunal’s reasoning. Where the tribunal considered financial material, including bank statements, and the appellant neither challenges the tribunal’s inferences from that material nor advances supporting argument, the appeal cannot succeed.

The Employment Tribunal at Huntingdon struck out Mr Oppong’s employment claims for persistent procedural default and unreasonable conduct. It ordered him to pay £4,800 as a contribution to Tesco’s costs after considering his stated income, expenditure and bank statements.

Following a preliminary sift and a hearing under Rule 3(10), the appeal was permitted to proceed only on the question whether the Tribunal had denied Mr Oppong a fair opportunity to give evidence and make submissions about his means. Neither Mr Oppong nor his representative attended the appeal hearing after unsuccessful adjournment applications.

1. Appeal dismissed. The appeal was confined to whether the Employment Tribunal had deprived the Claimant of a fair opportunity to address his means before making the costs order.

2. The Claimant’s written submissions did not substantiate that allegation. They did not explain the significance of the bank statements considered by the Employment Tribunal or challenge its inference that the Claimant had under-declared income and had disposable income from which a contribution could be paid.

3. The Employment Appeal Tribunal could therefore identify no arguable error of law in the Employment Tribunal’s assessment of means. The Employment Tribunal’s ability to refer to and analyse the bank statements also made it unclear how the Claimant could maintain that he had been denied an opportunity to provide evidence or submissions about his financial position.

4. Permission had not been granted for a wider challenge to the making of a costs order. In any event, such a challenge was plainly hopeless given the Employment Tribunal’s findings of deliberate and persistent procedural default and unreasonable conduct.

• Employment Appeal Tribunal: appeal dismissed. The appeal was limited to the alleged denial of an opportunity to address means in relation to the costs order.

• Employment Tribunal, Huntingdon: at a hearing on 23 July 2015, the Tribunal struck out the claims and ordered a £4,800 contribution towards the Respondent’s costs. Its decision was sent to the parties on 1 February 2016.