The claimant is a consultant plastic surgeon employed by the respondent trust. Between April 2011 and October 2014, he raised concerns regarding staffing levels and the consequences it could have for the health and safety of patients.

At the Tribunal, the claimant claimed to have made 18 protected disclosures which led to 40 alleged detriments. At the end of a 27 day hearing in front of the Tribunal, the claims were dismissed.  The Tribunal found that there had been some protected disclosures and detriment but that the two were not related.   The Tribunal noted that the claimant’s evidence was such that it tried to demonstrate that there was some conspiracy against him.  The issue before the EAT related to the costs decision of the Tribunal.  The Tribunal allowed the respondent’s application for costs outlining that the claimant had no reasonable prospect of success and had acted unreasonably in pursuing the case in a very lengthy hearing.  The respondent’s costs totalled £170,000.

The award of costs was available under Rule 76 of the Employment Tribunal Rules of Procedure 2013 (Rule 47 of the Industrial Tribunal Rules in Northern Ireland) where there was no reasonable prospect of success.   It was outlined by the EAT that in making an award of costs, there is an element of discretion given to the Tribunal.  As a result, and as seen in Barnsley MBC v Yerrakalva [2012] it is unlikely that the EAT would interfere with a matter relating to the use of discretion.

The claimant’s principal argument against the award of costs was that the original judgment stated that ‘many’ of the allegations of detriment on the grounds of disclosure had no reasonable prospect of success. The claimant argued that this demonstrated that at least some of the allegations then did have a reasonable prospect of success and no costs should be awarded.  This led to the argument that the Tribunal’s decision to award costs was ‘perverse’.

The EAT held that the threshold for perversity is a high one and that whilst one paragraph of the Tribunal judgment did outline that ‘many’ of the allegations had no reasonable prospect of success it did not necessarily mean that the others did have a reasonable prospect of success.  Indeed, at other parts of the judgment it outlined that the case presented had no reasonable prospect of success and the claimant had acted unreasonably. As a result of this as well as examining the claimant’s means, the appeal was dismissed and the costs order was retained.

Practical Lessons

This case demonstrates that whilst it has to be demonstrated that the case had no reasonable prospect of success, it is still possible to receive a costs award in the Tribunal.

When it is granted by the Tribunal, this case demonstrates the difficulty of overturning that decision on appeal.  The decision to award costs is discretionary and the appeal courts have outlined their reticence to interfere with the exercise of the discretion.   With the fact that costs can run into the tens and (in ths case) hundreds of thousands of pounds, it can be a significant application to make.  Therefore, an awareness of the rules regarding costs is integral in the Tribunal.  
https://assets.publishing.service.gov.uk/media/5da9a4a040f0b659847e0192/Mr_J_Brooks_v_Nottingham_University_Hospitals_NHS_Trust_UKEAT_0246_18_JOJ.pdf