Costs application dismissed by the EAT as it was not the case there was no reasonable prospect of success without the respondent’s witnesses being tested in a hearing.

The claimant was dismissed during the pandemic due to the loss of a client contract to which he was specifically assigned.  The claimant claimed race discrimination on the basis that two of his colleagues (of a different race) were furloughed at the time when he was dismissed.  This claim failed at the Tribunal.

The respondent sought costs and this was successful. The Tribunal stated that it was due to the exchange of witness statements and at that point the claimant ought to have been aware that he had no reasonable prospect of success.  The claimant appealed this.

The EAT held that the Tribunal had erred in granting the costs as there should have been due regard given to the particular features of the evidence which could give the claimant a reasonable basis for continuing his claim such as being able to test the respondent’s witness evidence and that heed would have to be given to the fact that a hypothetical comparator could have also been used rather than the two colleagues (where it was found that there was no comparison to be made due to the differences between the situations).  The Tribunal was also found to have erred when it came to fixing the amount of costs as the respondent sought the maximum of £10,000 and was awarded it even though the actual costs during the relevant period seemed to be less.  Also, it was found that the Tribunal would have had to address whether granting that award was reasonable and proportionate in the circumstances. The Tribunal decided to substitute the decision, rather than remit, dismissing the costs application entirely because of the first aspect relating to whether there was a reasonable prospect of success.

The fact that costs do not automatically follow the event as in other courts – they can be an important consideration in Tribunal proceedings. In this situation the EAT has held that costs should not have been awarded citing the fact that the witness statements alone would not have demonstrated there was no reasonable prospect of success – they took into account the fact that such evidence would have to be tested and that could only be done through the hearing.

You can read the case in full here:
 https://assets.publishing.service.gov.uk/media/67c822c72ecc810ad1fc6570/Mr_Victormills_Iyieke_v_Bearing_Point_Ltd__2025__EAT_25.pdf