U Prasad v Epsom & St Helier Hospital NHS Trust & Anor

Rule 76 of the Employment Tribunal Rules 2013 imposes a two-stage process. The tribunal must first decide whether a threshold in rule 76(1) is met. It must then exercise its broad discretion on whether to award costs.

Under rule 76(1)(b), whether a claim lacked reasonable prospects is fact-sensitive. A tribunal need not always decide every statutory cause of action separately. It may group allegations sharing the same defects, or assess proceedings as a whole where there is no material difference between them.

A costs order does not require a precise causal link between particular unreasonable conduct and particular costs. The tribunal must identify the conduct and assess, broadly, its effect on the proceedings and costs.

The Claimant, a former consultant cardiologist, brought second and third employment tribunal claims alleging whistleblowing detriment, direct sex and race discrimination, victimisation, harassment and equal pay. The claims were dismissed after a 14-day hearing, save that the equal-pay claim was withdrawn during that hearing.

The Respondent then applied for costs under rule 76(1)(a) and (b) of the Employment Tribunal Rules 2013. The Employment Tribunal found that parts of the claims had no reasonable prospects of success, that their pursuit was unreasonable, and that the conduct had increased the length, complexity and cost of the litigation. It ordered the Claimant to pay £20,000.

The Claimant appealed the costs order, alleging errors concerning the approach to individual claims, her knowledge and representation, causation of costs, and the decision to proceed in her absence.

1. Appeal dismissed. The Employment Tribunal made no error of law in awarding costs of £20,000.

2. Rule 76(1) of the Employment Tribunal Rules 2013 requires a tribunal first to determine whether a threshold ground is established and, if it is, to decide in its broad discretion whether to make a costs order. The Tribunal had separately found that parts of the claims had no reasonable prospects of success under rule 76(1)(b), and that their pursuit was unreasonable under rule 76(1)(a).

3. Opalkova did not establish a universal requirement to consider every statutory cause of action separately in every costs application. Whether claims must be individually separated is fact-sensitive. Here, the Respondent’s application and the Tribunal’s reasons identified particular allegations which could not succeed, including allegations founded on a comparator with the same protected characteristic, or on factual premises which were wrong or unsupported by evidence.

4. The Tribunal was entitled to take account of the Claimant’s litigation experience. More importantly, the defects identified were basic matters of fact within her knowledge, not legal errors which an unrepresented litigant might reasonably make.

5. The Tribunal’s reference to there being no causation test was not a misdirection when read fairly in context. A precise link between particular conduct and individual costs is unnecessary. The Tribunal correctly identified the unreasonable conduct and its broad effect: a longer hearing, a voluminous bundle and increased costs.

6. The decision to proceed in the Claimant’s absence was within the Tribunal’s case-management discretion. There was no further postponement application or medical evidence explaining her non-attendance. The Tribunal took reasonable steps to contact her, considered the written submissions already received, weighed the prejudice, and was entitled to find that the interests of justice required the hearing to continue. Article 6 did not prevent that course.

• Employment Appeal Tribunal: dismissed the appeal against the £20,000 costs order.
• Employment Tribunal: sent its costs judgment on 29 November 2023. It found the thresholds in rule 76(1)(a) and (b) of the Employment Tribunal Rules 2013 satisfied and ordered the Claimant to pay £20,000.
• Employment Tribunal: had previously dismissed the Claimant’s second and third substantive claims in a judgment sent on 7 February 2022.