In a Liability Decision which followed a full Merits Hearing, all of the Claimant’s complaints brought pursuant to the Equality Act 2010 by reference to the protected characteristic of disability were dismissed. The Respondent then applied for costs. In a further Decision which followed a Costs Hearing, the Employment Tribunal awarded the Respondent the whole of its costs of the litigation, subject to assessment. The principal bases of that Costs Decision were that the claims had no reasonable prospect of success and that the Claimant either knew or ought reasonably to have known that; and that, on that account, he had also conducted the proceedings unreasonably, by bringing the claims and/or continuing with them after receipt of a costs warning letter to which he did not respond. The Employment Tribunal also found that, in respect of certain complaints, he had lied to, or misled the Tribunal; and it would in any event have awarded costs in respect of those particular complaints.
An appeal against the Costs Decision was allowed to proceed to a full Appeal Hearing on four grounds, all of which failed.
Ground 1 challenged a finding in the Costs Decision that, at the time of a discussion with the Respondent, about the possibility of his departing with a severance package, at which the Claimant had, for the first time, raised allegations of disability discrimination going back five years, he did not believe those allegations to have merit. However, that finding was properly made, drawing on the findings in the Liability Decision; and the Claimant had had a fair opportunity to address the point in evidence at the Liability Hearing, and to make submissions about it at the Costs Hearing.
Ground 2 contended that, if Ground 1 was well-founded, then the conclusions in the Costs Decision, that the Claimant ought to have known that his claims had no reasonable prospect of success, and, on that account, unreasonably pursued them, could not stand. However, this Ground failed because: (a) Ground 1 failed; (b) the awards of costs on those bases in any event stood on the independent footing that the claims had no reasonable prospect of success, which the Claimant ought reasonably to have known; and (c) those latter findings were not, as such, challenged, and were, in any event, properly made without the Tribunal having wrongly relied upon hindsight.
Ground 3 challenged the Costs Decision’s reliance on findings that the Claimant had given false or misleading evidence on two particular issues. But these drew on findings in the Liability Decision, in respect of which the Claimant had been fairly cross-examined at the Liability Hearing, and which the Tribunal properly regarded as central to a sub-group of complaints.
Ground 4 challenged the conclusions that the Claimant acted unreasonably in continuing with his claims after receipt of the Grounds of Resistance and/or a later costs-warning letter. But, having regard to the reasons why Ground 2 failed, this Ground also failed.
[2020] UKEAT 0007 – 18 – 2102
Bailii
England and Wales
Updated: 01 September 2021; Ref: scu.649248
