Victormills Iyieke v Bearing Point Limited

An employment tribunal must assess, without hindsight, whether a discrimination claimant should reasonably have appreciated before trial that the claim had no reasonable prospect of success. The tribunal must allow for the difficulty of proving the reasons influencing an alleged discriminator and for the value of testing the employer’s explanation by cross-examination.

A named comparator’s failure to satisfy section 23 does not necessarily end a direct-discrimination claim. A hypothetical comparator and the evidential significance of the treatment of named individuals may remain material. When summarily assessing costs, a tribunal must also consider whether the amount sought is reasonable and proportionate, even where it is below the costs said to have been incurred.

The claimant, a systems analyst on a fixed-term contract, was dismissed during the pandemic after the respondent lost the client project to which he had been assigned. Two colleagues were furloughed. He brought unsuccessful complaints of direct race discrimination, relying on those colleagues as comparators.

After the merits hearing, the Employment Tribunal held that, from 9 December 2021, he had unreasonably pursued a claim with no reasonable prospect of success and made a costs order. In a later decision it summarily assessed costs at £10,000. The claimant appealed both costs decisions.

The central issues were whether the claimant could reasonably have continued to trial despite the asserted differences from his named comparators, and whether the tribunal’s assessment of his means and of the costs award was lawful.

1. Both appeals allowed. The EAT substituted a decision dismissing the respondent’s costs application under rule 76(1)(a) of the Employment Tribunals Rules of Procedure 2013.

2. The tribunal erred by deciding that the claimant should, after disclosure and exchange of witness statements, have realised that his discrimination claim had no reasonable prospect of success. In a costs jurisdiction the question remains what the claimant reasonably ought to have understood before trial, not what the tribunal later concluded after hearing all the evidence. The tribunal must be alert to the difficulty of proving the reasons that influenced an alleged discriminator and to the possible need to test the employer’s explanation at trial.

3. There remained reasonable scope to test the respondent’s explanation. The claimant and one colleague had performed the same role and shared other material features. The claimant had offered to accept furlough at the CJRS rate, while the respondent later capped that colleague’s furlough pay. There were also arguable issues about the treatment of performance concerns. The claimant was therefore not acting unreasonably by continuing with the claim.

4. The tribunal had concentrated on whether the colleagues were actual comparators under section 23(1) of the Equality Act 2010. It failed expressly to consider that, even if they were not statutory comparators, a hypothetical comparator and the colleagues’ treatment as evidence could still support an arguable claim.

5. Independently, the tribunal erred in the assessment of costs. It could not take judicial notice that the claimant was eligible for, or received, a student maintenance loan, particularly where material before it indicated the contrary. It also failed to consider evidence of financial support from his wife and did not show that it had assessed whether £10,000 itself was reasonable and proportionate. A requested figure is not justified merely because it is lower than the costs claimed.

• Employment Appeal Tribunal: Allowed the claimant’s joined appeals and substituted dismissal of the costs application: [2025] EAT 25.
• Employment Tribunal: Dismissed the direct race-discrimination claim, then held that the claimant had acted unreasonably from 9 December 2021 and ordered him to pay £10,000 costs. Those costs decisions were set aside.