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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Madu v Loughborough College (Practice and Procedure) [2025] EAT 52 (16 April 2025) URL: https://www.bailii.org/uk/cases/UKEAT/2025/52.html Cite as: [2025] EAT 52 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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Mr A E Madu |
Appellant |
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- and - |
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Loughborough College |
Respondent |
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Mr C Crow (instructed by rradar Limited) for the Respondent
Hearing date: 21 January 2025
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Crown Copyright ©
SUMMARY
Practice and Procedure
The Employment Tribunal erred in law in its analysis of an application for costs against the claimant.
HIS HONOUR JUDGE JAMES TAYLER
The issue
(i) Was the Claimant treated less favourably than a white Irish candidate in that he was denied the opportunity to move his interview time and the other candidate was granted that opportunity? Was this action of the Respondent justified or was the Claimant treated less favourably because of his race or ethnicity?
(ii) Was the Claimant treated less favourably than the white British candidate who was appointed in that, due to a lack of diversity or the presence of bias or for any other reason, the Claimant was not appointed? Was any such less favourable treatment because of the Claimant's race or ethnicity?
(iii) Was the Claimant treated less favourably in going through the request for feedback and his various complaints than a white British candidate would have been treated because of the Claimant's race or ethnicity?
9. The successful candidate in the interview process was the white British male. The Claimant again claims to have been treated "differently" because of his ethnicity. This was evidenced by the fact that only 2.9% of staff at the Respondent are non-white.
The law
When a costs order or a preparation time order may or shall be made
76. (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that
(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or
(b) any claim or response had no reasonable prospect of success.
A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As [counsel for the claimant] submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional adviser. Tribunals must bear this in mind when assessing the threshold tests . Further, even if the threshold tests for an order of costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.
26.3. The paying party cannot hide behind their assertion that their belief they had been discriminated against is sincere to suggest it is reasonable to pursue them, or to show that a costs order would be inappropriate in relation to them (particularly where a tribunal has found that there was "virtually nothing to support them"): Keskar v Governors of All Saints School [1991] ICR 493;
While we consider that the applicant has throughout given every sign of sincere belief in his allegations of racial discrimination, his motive in bringing these proceedings has been to hit back at his headmaster and the governors over the latter's failure to appoint
him as headmaster and the former's taking of disciplinary action against him which the governors endorsed. It is our view that the applicant has been motivated by resentment and spite in bringing these proceedings. We also consider that, as there was virtually
nothing to support his allegations of racial discrimination he has acted unreasonably in bringing them. Accordingly, we consider that this is a proper case in which to make an order for costs against him.
Discrimination cases are generally fact-sensitive, and their proper determination is
always vital in our pluralistic society. In this field perhaps more than any other the bias
in favour of a claim being examined on the merits or demerits of its particular facts is a
matter of high public interest.
34. In the strike-out jurisdiction, the tribunal is, in the nature of things, usually called upon to make a judgment of this kind ahead of trial on the basis of the material currently then available. In the costs jurisdiction, in the nature of things, the exercise is usually carried out in point of time after a trial, by which time the tribunal has itself been exposed to all of the evidence and reached its conclusions. But nevertheless what the tribunal has to decide in a case of this type is whether the claimant ought at the relevant time pre-trial to have appreciated that their claim had no reasonable prospect of success on the information then available. The tribunal therefore needs to be wary when making such a costs decision, of being influenced by the hindsight of how the evidence in fact unfolded at trial. Nevertheless, there can be cases where the tribunal can properly conclude that what the claimant knew pre-trial should have made the position reasonably clear to them at that point. (See: Radia v Jefferies International Ltd [2020] IRLR 431 at [61] [67].)
40 The actual words of rule 40 are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson v BNP Paribas (London Branch) delivered by me has created some confusion in the employment tribunal, Employment Appeal Tribunal and in this court. I say "unfortunately" because it was never my intention to re-write the rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the employment tribunal to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as "nature", "gravity" and "effect". Perhaps I should have said less and simply kept to the actual words of the rule.
41 The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.
The grounds of appeal
Assuming that when the claimant obtained legal representation he was advised that his claim had no reasonable prospects of success
19.4. He represented himself when he began his claim. However on 23 September 2020 and for the remainder of the case he was represented by solicitors. There is no evidence to suggest they gave him anything except competent advice. He has not waived privilege. We assume therefore that he was advised that his claim had no reasonable prospect of success. It follows he chose to continue his claim despite that competent advice from solicitors.
21. A deposit would have not stopped him or made him think twice. This is evidenced by the fact that once he had solicitors, who we assume advised him competently, he continued with his claim.
31.2.2 However once he became represented by a solicitor, we are certain that he would have been aware that his case lacked merit since we infer he would have been competently advised about the merits of his claim and that it had no reasonable prospect of success (and no evidence has been adduced to suggest that either he was badly advised or he refused to receive advice).
The period during which the claimant was unrepresented
the Employment Tribunal failed to take into account the substantial period during which the claimant was unrepresented including whether he did or should have realised that the claim had no reasonable prospects of success in that period having regard to the particular challenges of bringing discrimination claims
20. The respondent did not warn the claimant they might seeks costs. The respondent never applied for the claim to be struck out or that the claimant pay a deposit if he wanted to pursue it.
21. We conclude that a deposit would have made no difference in this case. It is quite apparent from the way the claimant presented and pursued his claim (particularly his comments recorded in [23]-[25] of the judgment) he would have pursued this case in any event. A deposit would have not stopped him or made him think twice. This is evidenced by the fact that once he had solicitors, who we assume advised him competently, he continued with his claim. It is also evidenced by his failure in the substantive hearing to be able to concede obvious points or accept there may be other explanations.
22. We find as a fact that the respondent cannot be criticised for not giving "a costs warning" or for not seeking a deposit since they would incur more expense but not save any money since they would have no effect on the claimant.
23. In light of the strict test to be satisfied before a claim for discrimination can be struck out for having no reasonable prospect of success (see Anyanwu v South Bank Students Union [2001] UKHL 14), the respondent cannot in our view be criticised for not incurring the expense to pursue that possibility when the chance of success would be limited.
Nature, gravity and effect of any unreasonable conduct
Conclusion