Gosalakkal v University Hospitals Of Leicester NHS Trust (COSTS - Detailed Assessment)

On a detailed assessment following a costs order limited to particular claims, the tribunal must correctly identify the overlap between those claims and claims for which no costs were ordered. A broad-brush apportionment is permissible, but it must reflect the work that would in any event have been required to determine the excluded claims.

On standard-basis assessment, proportionality requires a broad and realistic appraisal of the sums truly in issue. An unrepresented party’s extravagant schedules should not displace a properly worked and more realistic schedule lodged while represented, although that schedule is not conclusive.

The Claimant brought complaints of public-interest-disclosure detriment and automatic unfair dismissal, ordinary unfair dismissal, and wrongful dismissal. The Employment Tribunal dismissed the substantive claims. A costs order was later made only in respect of the conduct of the detriment and automatic-unfair-dismissal proceedings from a specified date.

On detailed assessment, the Employment Judge assessed the Respondent’s costs at £75,640.86 plus £7,290 assessment costs. She apportioned preparation costs on the basis that 20% would have been incurred for ordinary unfair dismissal and treated schedules exceeding £2 million as relevant to proportionality.

The Claimant appealed, principally contending that the assessment misunderstood the overlap between the claims and overstated the sums genuinely in issue.

1. Appeal allowed. The detailed assessment was remitted for reconsideration of disentanglement and proportionality.

2. The Employment Judge’s attribution of only 20% of preparation costs to ordinary unfair dismissal rested on a material misunderstanding of overlap. Documents predating February 2011 were relevant not only to the public-interest-disclosure claims but also to the employer’s asserted reason for dismissal, the Claimant’s challenge to that reason, and the wrongful-dismissal claim. The ordinary unfair dismissal claim was not necessarily straightforward merely because the protected-disclosure claims were removed.

3. Under section 98(4) of the Employment Rights Act 1996, an employment tribunal must engage with the substantive merits of a conduct dismissal as well as the process followed. It must assess the evidence concerning the reason for dismissal, the investigation, process, findings and sanction by reference to the reasonable-employer standard. That analysis showed why substantial common material could have been required even without the claims attracting costs.

4. For proportionality under CPR 44.3(2) and 44.5(a), the sums in issue required a broad and realistic assessment. The Employment Judge should have considered the properly worked schedule for £116,425 lodged by the Claimant’s representatives as a realistic starting point. She was not bound by it, and her other findings on proportionality and reasonable charging rates remained permissible.

5. The absence of an express reference to the burden of proof in CPR 44.3(2) disclosed no error of law. The Employment Judge had made the necessary findings on the available material.

The parties were invited to make written submissions on whether remission should be to the same Employment Judge, having regard to Sinclair Roche & Temperley v Heard [2004] IRLR 763. A short stay was to permit possible compromise.

• Employment Appeal Tribunal: allowed the appeal and remitted the detailed assessment for reconsideration: [2019] UKEAT 0114_18_0407.
• Employment Tribunal: dismissed the substantive complaints in a written judgment dated 8 January 2015. It subsequently made a limited costs order and, on 13 July 2017, assessed costs following detailed assessment.