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23 January 2017

47: Costs award upheld against an unrepresented claimant who failed to particularise her case

Employment Tribunals have the discretion to make a costs order where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting proceedings. In Liddington v 2gether NHS Foundation Trust, the EAT had to consider whether to uphold an Employment Tribunal’s decision to make a costs order against a litigant in person after she failed to properly particularise her claims.

Ms Liddington was employed by the Trust as a community practitioner. She claimed that she had made a safeguarding referral relating to a patient in a private care home that amounted to a protected disclosure, after which she was subjected to a number of detriments and eventually dismissed. Ms Liddington brought various Tribunal claims including unfair dismissal, religious discrimination, victimisation and whistleblowing. She represented herself throughout.

During the proceedings, Ms Liddington was advised by three Employment Judges during a number of preliminary hearings that her claims were not adequately particularised. Most crucially, she had failed to provide the dates of some of the acts she relied on for her victimisation claim, and to identify the specific detriments she was relying on. This was important as it appeared that some of the alleged acts of detriment pre-dated her safeguarding referral. Eventually the Tribunal ordered that Ms Liddington pay the Trust’s costs for a wasted preliminary hearing because she had unreasonably failed to provide the required information.

Upholding this decision, the EAT noted that the Tribunal had taken into account the lower standards which should be applied to a litigant in person and had used lay person’s terms when asking her to provide the missing details. The court also noted that the Tribunal had not made its costs order on the basis that Ms Liddington was being deliberately obstructive. The court’s decision was based on her unreasonable lack of preparation for the preliminary hearing which amounted to unreasonable conduct justifying a costs award.

Tribunals are allowed to give additional support to litigants in person in light of the ‘overriding objective’ of dealing with cases justly which includes, as far as possible, ensuring that the parties are on an equal footing. As this case illustrates, however, there are limits to this support. Unrepresented claimants are expected to conduct proceedings in a reasonable manner and to comply with case management orders. Nevertheless it is still relatively unusual for an Employment Tribunal to make a costs order for an employer’s costs against an employee.

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