Brooks v Nottingham University Hospitals NHS Trust

Employment tribunals may order costs where a party has acted unreasonably or where a claim has no reasonable prospect of success. Such an award involves a three-stage approach: threshold, discretion, and quantum. The Employment Appeal Tribunal will rarely disturb a tribunal's costs discretion unless there is an error of law or the decision is perverse. Rule 76 permit costs for vexatious, abusive, disruptive or otherwise unreasonable conduct. Rule 84 allows regard to the paying party's means. There is no special rule insulating NHS whistleblowers from costs where conduct is objectively unreasonable.

The claimant, a consultant surgeon, brought protected-disclosure (whistleblowing) detriment claims. The Employment Tribunal dismissed liability after a 27-day hearing. The respondent successfully applied for a costs order under Rule 76 of the Employment Tribunal Rules of Procedure 2013 and the Tribunal ordered the claimant to pay the respondent's costs. The claimant appealed to the Employment Appeal Tribunal on multiple grounds asserting perversity, error in the exercise of discretion and inadequate reasons. The EAT heard contention on causation principles, legal advice, means, and public-policy considerations.

1. Outcome: The appeal is dismissed. The EAT will not interfere with the Tribunal's exercise of discretion in the absence of an error of law or a perverse conclusion (see paras 9–18 of the Costs Judgment).
2. Threshold and discretion: The Tribunal properly applied the three-stage approach to costs: (1) identify whether Rule 76 circumstances apply; (2) exercise the discretionary decision whether to make an award; (3) decide quantum. The EAT endorsed that structure and its limited scope for interference.
3. On perversity: The Tribunal's finding that the claimant had presented a case with no reasonable prospect of success was supported by its conclusions about the claimant's three principal planks. The EAT held that those findings provided an objective basis to conclude the claim was unreasonable and not perverse to do so.
4. Reynolds point (causation): The EAT held the legal position derived from Reynolds v CLFIS UK Ltd [2014] ICR 907 was clear at the relevant time. The Tribunal was entitled to conclude there were no reasonable prospects where there was no evidence that the relevant decision-maker was motivated by or had knowledge of the protected disclosure.
5. Legal advice: A represented litigant cannot rely on a bare assertion of professional advice without tendering evidence of its content. In the absence of such evidence the Tribunal was entitled to assume proper advice had been given and to proceed on that basis.
6. Means and Rule 84: The Tribunal may have regard to the paying party's means. It was not required to make a concluded finding of immediate affordability. The Tribunal's approach to the claimant's means and the realistic prospect of recovery was not perverse.
7. Public policy: There is no special immunity for NHS whistleblowers from the statutory costs regime. Concerns about deterrence do not displace the Rule 76 criteria nor restrict the Tribunal's discretion where conduct is objectively unreasonable.
8. Reasons and scope: The Tribunal was not required to repeat every finding from the Liability Judgment in the Costs Judgment. Reading both judgments together supplied adequate reasons. The absence of a specific costs warning did not preclude an award.
9. Conclusion and order: The EAT dismissed the appeal. The Tribunal's costs order stands. No interference was justified with the exercise of discretion, threshold or quantum in the circumstances.

• Employment Tribunal (Nottingham) — Liability Judgment dismissed the claimant's whistleblowing detriment claims and Costs Judgment ordered the claimant to pay the respondent's costs (see Costs Judgment paras 9–18).
• Employment Appeal Tribunal — Appeal against the Costs Judgment dismissed by Choudhury J sitting alone. (Judgment delivered 17 October 2019.)