C M Day v Health Education England

A wasted costs order requires findings that a representative acted improperly, unreasonably or negligently, that the conduct caused unnecessary costs, and that an order is just. Where privilege prevents a representative from giving the full account, the tribunal must allow for that limitation. Privilege does not itself prevent an order, but the conduct must be quite plainly unjustifiable after that allowance. In Employment Tribunal proceedings, absent a disclosure order there is no general duty to give discovery. A party making voluntary disclosure must avoid unfair selectivity or creating a misleading impression.

Dr Day, a doctor employed by Lewisham and Greenwich NHS Trust, brought whistleblowing claims against the Trust and Health Education England (HEE), arguing that HEE also came within the relevant worker definition. After the worker-status dispute proceeded and settled, Dr Day learned of Learning and Development Agreements and applied for a wasted costs order against HEE’s solicitors, Hill Dickinson LLP, alleging that their non-disclosure had caused him additional costs. The Employment Tribunal refused the application in a decision sent to the parties on 17 December 2024. It held that settlement agreements barred the application and, alternatively, found no improper, unreasonable or negligent conduct and no additional costs caused by the alleged non-disclosure. The appeal focused on the Tribunal’s approach to privilege and disclosure; the other grounds depended on that challenge.

1. Appeal dismissed. The EAT did not decide the grounds concerning the construction of the settlement agreements and Learning and Development Agreements. Those grounds depended on the challenge to the Tribunal’s findings on conduct, which failed.
2. Under Rule 80 of the ET Rules of Procedure 2013, the Ridehalgh v Horsfield test requires the Tribunal to ask whether the representative acted improperly, unreasonably or negligently; whether that conduct caused unnecessary costs; and whether it is just to order payment of some or all of those costs. The EAT held that the Tribunal had correctly applied that test. The threshold is rigorous, and a wasted costs order is a serious sanction.
3. A refusal to waive legal professional privilege does not, by itself, prevent a wasted costs order. The Tribunal must make allowances for a representative’s inability to give the whole account. After those allowances, the conduct must be quite plainly unjustifiable. Applying Morris v Roberts (HMIT), the EAT held that the findings did not show conduct admitting of no reasonable explanation. The Tribunal had found that the litigation team was unaware of the agreements for a period and that the Gold Guide gave Dr Day a good understanding of their material terms. It also found no material difference between the Guide and the agreements.
4. Before an order for disclosure, there was no general obligation to give discovery in Employment Tribunal proceedings. A party making voluntary disclosure must not be unfairly selective or risk conveying a false or misleading impression. The EAT upheld the Tribunal’s direction on those principles and its finding that the earlier non-disclosure did not create such an impression. After the disclosure order, the Tribunal had found that the 2012 Template Agreement was disclosed. Although the reason for the non-disclosure of other agreements was unclear, the evidence, assessed with proper allowance for privilege, did not make the solicitors’ conduct quite plainly unjustifiable.
5. The Tribunal also found that the alleged non-disclosure had not caused additional costs. The EAT considered it fanciful that disclosure before the Court of Appeal hearing would have prevented remittal of the worker-status issue. Even if the first two stages of the test were met, the Tribunal had a wide discretion whether to order costs, and there were no compelling grounds for appellate interference.

1. Employment Appeal Tribunal — appeal dismissed: [2026] EAT 97 .
2. Employment Tribunal (London South Regional Office) — Employment Judge Ramsden refused the wasted costs application in a decision sent to the parties on 17 December 2024.