Mark Ward v Dimensions (UK) Ltd

The Employment Appeal Tribunal found that the Employment Tribunal made a material error in its calculation of the appellant's monthly expenditure when deciding the amount of a costs order under Rule 76 of The Employment Tribunal Rules and Procedure 2013. The ET had concluded the appellant's monthly personal expenditure was £690 but the correct total, as shown in the appellant's witness statement and accepted by the respondent, was £1,245.28. The error was material given the appellant's modest monthly income of about £1,300 and the ET's express incorporation of ability to pay in its reasoning (applying Jilley and considering Arrowsmith).

Because the error rendered the £5,000 award unsafe the EAT remitted the limited issue of the amount of the costs order back to the original tribunal for reconsideration, permitting written submissions and updated financial evidence but not reopening the factual findings that the appellant had acted unreasonably.

Background and parties: The appellant, Mr Mark Ward, appealed a costs order of 5,000 made by an Employment Tribunal in Watford following dismissal of his claims for ordinary unfair dismissal, automatically unfair dismissal relating to a protected disclosure and detriment for a public interest disclosure contrary to section 47B of the Employment Rights Act 1996. The respondent was Dimensions (UK) Ltd.

Nature of the application: The appeal concerned the costs order made under Rule 76 of The Employment Tribunal Rules and Procedure 2013. The respondent had applied for costs on three bases: unreasonable conduct in bringing and conducting proceedings (Rule 76(1)(a)), that the public interest disclosure claims had no reasonable prospects of success (Rule 76(1)(b)), and breach of an order to provide further particulars (Rule 76(2)). The ET found unreasonable conduct on the first basis (multiple changes to Scott schedules and refusal of a without prejudice settlement offer) and ordered costs of 5,000 against the appellant. The appellant appealed the costs order to the EAT.

Issues framed by the EAT:

• Whether the ET had erred in its findings about the appellant's monthly expenditure;
• whether that error was material to the decision to award 5,000 in costs; and
• if material, what the appropriate remedy should be (including whether to remit to the ET or decide the amount afresh).

Court's reasoning: The EAT noted the ET had expressly referred to the appellant's means in reaching its decision and had relied on authorities (including Jilley and Arrowsmith) on when and how means should be taken into account. The respondent accepted that the ET's figure for monthly expenditure ( 690) was an incorrect reading of the appellant's own financial statement and accepted the correct monthly expenditure was 1,245.28. Given the appellant's reported monthly income of approximately 1,300, the difference was material to disposable income and thus to the proportionality of the costs award. The EAT held the ET's conclusion as to the amount of costs was unsafe. Applying Sinclair Roche & Temperley the EAT remitted the narrow issue of the amount of the costs order back to the original ET to reconsider in light of the correct expenditure figure and other factors already considered, permitting written submissions and updated financial evidence, but without reopening findings on unreasonable conduct.

Appeal allowed in part. The EAT held that the Employment Tribunal had made a material error in misstating the appellant's monthly expenditure. Because the ET had expressly taken ability to pay into account, the misstatement rendered the 5,000 costs award unsafe. The EAT remitted the limited issue of whether costs should be awarded and, if so, the amount back to the original ET to consider afresh with the correct monthly expenditure and any updated financial evidence, while leaving the ET's findings on unreasonable conduct undisturbed.

The appellant's primary claims were dismissed by the Employment Tribunal sitting in Watford (decision sent 25 June 2019; reasons sent 6 September 2019). The Employment Tribunal subsequently made a costs order in favour of the respondent, sent to the parties on 19 April 2021. The appellant appealed the costs order to the Employment Appeal Tribunal, which handed down this judgment, neutral citation [2022] EAT 159.