Daly v The Newcastle Upon Tyne Hospitals NHS Foundation Trust: EAT 22 Mar 2019

Appellate Jurisdiction : Reasons : Burns- Barke : Costs – The Claimant had pursued some 27 allegations of disability discrimination before the Employment Tribunal (‘ET’). After a fully contested hearing over five days, the ET had dismissed the Claimant’s claims. In providing its reasons, the ET set out its findings on each matter separately, under a summary of the allegation itself, and referred back to those findings – by paragraph number – when setting out its conclusions.
Subsequently, the ET made an order for costs against the Claimant.
The Claimant appealed both decisions. On the ET’s Judgment on Liability, he complained that its reasoning was inadequate: the ET had failed to make findings on some allegations; where it had made findings, it had failed to explain why it had formed the view that it had; it had failed to explain its position on critical documentary evidence; and it had failed to explain why it had reached the position it had when setting out its conclusions. The Claimant also raised a procedural issue regarding late disclosure by the Respondent. On the Costs Judgment, the Claimant contended that the ET had failed to demonstrate that it had considered its exercise of discretion – an essential second stage of the decision-making process.
Held: allowing the liability appeal in part and allowing the costs appeal.
In most respects, taking the ET’s reasoning as a whole, the ET’s findings were apparent and it was clear to the reader (particularly the parties, who did not come to the Judgment as strangers to the case) why the ET had preferred the evidence of the Respondent to that of the Claimant and why it had reached the view it had. As for the documentary evidence, it was unclear whether the points made on appeal had been raised below or what the oral evidence had been; in the circumstances, the Claimant could not make good his challenge to the adequacy of the reasons on this basis. The Claimant’s appeal would, however, be allowed in relation to allegations X and Y – relating to his complaint that false reports had been made against him and that statements and evidence to support those reports were not provided to him; it was not possible to see that the ET had made findings on these points and, to that limited extent, the liability appeal would be allowed. The additional objection made, in respect of what the Claimant contended was a procedural irregularity, did not, however, establish any unfairness: the new material had added nothing of substance to what was already before the ET.
As for the costs appeal, there were three stages to the ET’s consideration of costs application: (i) to determine whether its jurisdiction to make a costs award was engaged; (ii) if so, to then consider whether it should make costs award in that case (the use of the word ‘may’ made clear this was a matter of discretion); (iii) to determine the amount of any such award. In the present case, there was nothing to suggest that the ET had understood it had a discretion in making an award of costs, the reasoning moved straight from (i) to (iii). That was an error of law and the Claimant’s appeal would be allowed.


[2019] UKEAT 0107 – 18 – 2203




England and Wales

Employment, Costs

Updated: 06 July 2022; Ref: scu.638491