S Khakimov v Nikko Asset Management Europe Limited

An employment tribunal may make proportionate allowances for a disabled litigant in person without being required to reconstruct an unpleaded case, disregard inadequate particulars, or consider every possible disability-related explanation for conduct.

When deciding costs under the Employment Tribunal Rules of Procedure, the tribunal must assess the whole picture. A costs order may reflect unreasonable conduct, provided it is not punitive. In considering ability to pay, the tribunal may take account of a realistic prospect of future payment. It need not be satisfied that the sum can be paid by the specified payment date.

Case-management decisions, disclosure, and lists of issues remain subject to a broad discretion. A list of issues must reflect pleaded claims and proper particulars, not unpleaded allegations.

The claimant, a disabled former employee, brought claims for race and disability discrimination, victimisation and detriments for protected disclosures. Following his dismissal, he also sought interim relief.

He appealed five rulings made during the employment tribunal proceedings. They concerned refusal of permission to amend to add an automatic unfair-dismissal claim under section 103A of the Employment Rights Act 1996; findings of unreasonable conduct and a costs order; refusal of access to his work e-mail and calendar and wider disclosure; and the formulation of the list of issues.

The common contention was that the employment judges had failed to make sufficient allowance for his disability and litigant-in-person status.

1. Appeal dismissed. All five grounds disclosed no error of law. The employment judges had made adjustments and allowances for the claimant’s disability and unrepresented status.

2. On amendment, it was permissible to treat the claimant’s witness statement of 21 April 2021, rather than an earlier ambiguous e-mail, as the first implicit application to amend. The tribunal was not bound to make a further adjustment by treating the earlier e-mail as an amendment application. It was also entitled, while applying Selkent, to take inadequate particularisation into account. A more inquisitorial approach does not require a tribunal to discount that deficiency merely because a claimant has cognitive difficulties.

3. For costs under rule 76(1), the tribunal correctly considered the whole picture and found that the claimant’s alteration of his case was opportunistic and unreasonable. Rule 77 required a reasonable opportunity to make representations, not cross-examination. An employment judge need not address every possible explanation for a party’s conduct, including every explanation connected with disability, where adequate reasons have been given.

4. Under rule 84, ability to pay was discretionary and could be assessed prospectively. A tribunal may order an amount which there is a realistic prospect the paying party can meet in the future; it need not find that the whole sum can be paid by the date ordered. The £7,500 award was proportionate, reflected the extent of unreasonable conduct, and was compensatory rather than punitive.

5. The tribunal was entitled to conclude that compulsory access to a party’s e-mail inbox or calendar was outside the Rules. In any event, disclosure of approximately six years of material was not necessary or proportionate before the claims had been properly particularised. It was also entitled to refuse to revisit the earlier case-management order absent a material change of circumstances or other exceptional basis.

6. The list of issues properly included pleaded matters and material properly amounting to further particulars. It could not include new protected disclosures or other unpleaded allegations without an amendment application. No remittal was required.

• Employment Appeal Tribunal: dismissed the claimant’s five appeals from interlocutory employment tribunal decisions: [2023] EAT 38.
• Employment Tribunal: refused permission to amend to add a section 103A claim, found unreasonable conduct, ordered costs of £7,500, refused the requested disclosure/access orders, and settled the list of issues. No citation was stated.