Herry v Dudley Metropolitan Council: EAT 16 Dec 2016

EAT Practice and Procedure: Costs – DISABILITY DISCRIMINATION – Disability
The Employment Tribunal sufficiently explained its reasons for holding that (subject to the question of ability to pay) the Claimant should pay the whole of the Respondents’ costs. However the Employment Tribunal, having decided to take account of the Claimant’s ability to pay and having found that he was impecunious, did not sufficiently explain why it considered that he would have the future earning capacity to pay a Costs Judgment of more than andpound;100,000; and did not explain why it had not considered ordering a proportion of the costs or a capped amount of costs taking account of the Claimant’s ability to pay. Arrowsmith v Nottingham Trent University [2012] ICR 159 and Vaughan v London Borough of Lewisham and others [2013] IRLR 713 considered and applied. Appeal allowed on that ground alone. Remitted to same Employment Tribunal.
Note. The Respondent had taken the unusual step of serving a statutory demand on the Claimant as a precursor to bankruptcy proceedings. The Judgment discusses the potential effect of bankruptcy on further litigation brought by the Claimant; and holds that an applicant for costs who argues that the future earning capacity of the paying party should be taken into account ought to inform the Employment Tribunal if there is any intention to serve a statutory demand and commence bankruptcy proceedings in the near future.
The Employment Judge did not err in law in rejecting the Claimant’s case that he had a disability during a relevant period in 2014. J v DLA Piper UK [2010] ICR 1052 discussed and applied in the context of absence described as ‘stress’ or ‘work related stress’.

David Richardson HHJ
[2016] UKEAT 0101 – 16 – 1612, [2016] UKEAT 0100 – 16 – 1612
Bailii, Bailii
England and Wales

Employment, Discrimination, Costs

Updated: 27 January 2022; Ref: scu.572674