London Fire Commissioner v A Hurle

An Employment Appeal Tribunal costs order is discretionary. A ground which has been permitted to proceed at the sift stage may nevertheless prove misconceived, but the sift decision is a material reason for caution before making a costs order.

An unsuccessful appeal is not, without more, misconceived or an abuse of process. The question is whether the grounds were properly arguable when fairly analysed. A party which is ready to seek costs should ordinarily apply at the appeal hearing, notwithstanding the ability to apply in writing within 14 days. This assists the overriding objective and conserves the Tribunal’s resources.

The Employment Tribunal upheld claims for failure to make reasonable adjustments and discrimination arising from disability under the Equality Act 2010. It rejected the claimant’s direct disability-discrimination claims.

The employer appealed. Two grounds were allowed to proceed after the sift: whether the Tribunal had applied the correct long-term-effects test when finding constructive knowledge of disability, and whether the decision to use disciplinary procedures was taken with the requisite knowledge. The appeal was dismissed following an oral hearing.

The claimant then applied for costs, contending that those grounds were misconceived and that the appeal was an abuse of process. The central issue was whether the unsuccessful appeal justified an order under rule 34A of the Employment Appeal Tribunal Rules 1993.

1. The costs application was refused. Rule 34A permits, but does not require, a costs order where proceedings were unnecessary, improper, vexatious or misconceived, or where there has been unreasonable conduct. Neither surviving ground met that standard.
2. The fact that a judge had found the grounds arguable at the sift stage was not conclusive. A ground could prove unarguable after fuller examination. It was nevertheless a material reason for caution before characterising the appeal as misconceived.
3. On ground 3, the Tribunal’s reasoning contained some unclear passages, but when read fairly and as a whole it stated and applied the correct requirement: the substantial adverse effect, rather than merely the impairment, had to be likely to last 12 months. The ground had been arguable and was not misconceived.
4. On ground 6, it was arguable that the Tribunal should have concentrated on AC Rowe’s involvement. However, the Tribunal had permissibly found that the operative decision to use the disciplinary procedure was made, on Miss Gibbs’s advice, after the employer had constructive knowledge of disability. The ground was therefore dismissed but was not misconceived.
5. The appeal retained a practical purpose because commencing disciplinary action could have generated an additional injury-to-feelings award. It was not an abuse of process. The judge also stated that parties ready to seek costs should normally apply at the hearing, so as to further the overriding objective and preserve EAT resources.

• Employment Appeal Tribunal: The employer’s appeal against the Employment Tribunal’s liability decision was dismissed by an order sent on 18 January 2022. In this subsequent costs judgment, the EAT refused the claimant’s costs application.
• Employment Tribunal: Employment Judge Moor, sitting with members, upheld claims for reasonable adjustments and discrimination arising from disability, and rejected direct disability-discrimination claims.