U Prasad v Epsom & St Helier Hospital NHS Trust & Anor

SUMMARY Whistleblowing, Protected Disclosures, Race and Sex Discrimination, Victimisation The Tribunal properly applied the burden of proof provisions in section 136 Equality Act 2010 to the claims of sex and race discrimination and gave adequate reasons for dismissing those claims. The criticism of the Tribunal in respect of its analysis and reasons for finding that there was no causal connection between her protected disclosure and protected acts and the treatment of which she complained. The other grounds of appeal were therefore academic. The complaint that the Tribunal was ‘perverse’ to base findings of fact on oral evidence which emerged in cross-examination which had not been contained in the witness’ written statements or was given as hearsay is misconceived. Whether taken together, or individually, the series of complaints that the Tribunal did not apply the correct test in respect of ‘detriment’. On a fair reading of the judgment as a whole, the Tribunal found that the Claimant was not reasonable in her criticisms of the Respondent, or that matters of which she complained were as a result of her reluctance to comply with the Respondent’s reasonable requests or decisions about how to conduct the investigation into her clinical practice and/or her grievances. The Tribunal did not err in its approach to these issues. SARAH CROWTHER KC, DEPUTY JUDGE OF THE HIGH COURT: Introduction

1. This appeal is against the Judgment of the Tribunal (EJ McLaren sitting with Mr C Mardner and Ms K Omer) sent with reasons to the parties on 29 November 2023 in which it ordered the Claimant to pay £20,000 in costs to the Respondent. The appeal was permitted to proceed to a full hearing on consolidated amended grounds, namely: (1) That the Tribunal had erred in law by failing to follow the approach set out by the EAT in Opalkova v Acquire Care Limited EA-2020-000345-RN (HHJ Tayler, 1 September 2021 ). (2) That the Tribunal erred in failing to consider whether at the stage at which each claim was found to have no reasonable prospects of success, whether the Claimant knew or ought reasonably to have known and therefore impermissibly elided the task before under rule 76(1)(a) with that under rule 76(1)(b) (3) That the Tribunal misdirected itself in respect of the causation requirement when making a costs order; and (4) That the Tribunal erred in proceeding in the absence of the Claimant. PROCEDURAL BACKGROUND

2. It is necessary to set out some of the chronology of the application as it arises within the context of many other claims and appeals brought by the Claimant. The Claimant was employed by the Respondent as a consultant cardiologist between 2010 and 2020. The Claimant made disclosures which were protected and from about 2012 the relationship between the Claimant and a staff grade doctor became problematic. Each made complaints of poor clinical performance against the other. The Respondent instigated a process known as MHPS ‘Maintaining High Performance Standards’ in respect of the Claimant. The Claimant raised grievances concerning the staff grade doctor’s conduct and how the MHPS process was being handled, amongst other matters.

3. On 24 August 2018 the Claimant presented a claim form to the employment tribunal. This was the second claim form she had issued (“the Second claim”). On 20 December 2019 she presented a third claim form (“the Third claim”). Those claims raised whistleblowing detriment, direct sex discrimination, direct race discrimination, victimisation, sex related harassment and equal pay as causes of action. The Second and Third claims were heard together by a Tribunal comprising EJ Hyams-Parish, Mr C Mardner and Ms K Omer over 14 days in November 2021. The equal pay claim was withdrawn by the Claimant on the second day of the Tribunal hearing. The Tribunal sent a Judgment with reasons to the parties on 7 February 2022 dismissing all the claims.

4. The Claimant subsequently appealed against the dismissal of the Second and Third Claims in appeal number EA-2022-001445. I heard that appeal on 21 January 2026 and dismissed the appeal for reasons set out in my written judgment handed down on 22 January 2026. THE COSTS APPLICATION

5. The Respondent made an application in respect of costs by letter dated 22 March 2022 pursuant to rules 76(1)(a) and 76(1)(b) of the Employment Tribunal Rules 2013. As the Tribunal set out at §23 of its costs judgment, “The respondent summarised their position that they were relying on two points, unreasonable conduct/no reasonable prospects of success. They relied upon allegations where the claimant relied on a comparator with the same protected characteristic as herself; allegations where the claimant relied on there being a failure and was unable to identify any requirement in law, policy or best HR practice; allegations for which the claimant to particularise evidence; and allegations unsupported by any evidence. It also referred to the abandonment of the equal pay claim during the trial on day two.”

6. At paragraph 41 of its reasons, the Tribunal gave a full breakdown by reference to the Agreed List of Issues annexed to the liability judgment, of those claims which it was said had been unreasonably pursued and the reasons why in each case the claim was not reasonably brought. This was taken from the Respondent’s analysis of the claims brought in its application which I have also been shown.

7. The Respondent stated in its application that it had incurred over £150,000 plus VAT in defending the Second and Third Claims. However, the application was limited to the Tribunal’s summary assessment limit of £20,000.

8. The costs hearing was due to be heard on 23 August 2023. The Claimant had made postponement applications which had been rejected; however, the hearing was nevertheless vacated due to lack of judicial resources. On 28 September 2023 the Tribunal sent a notice of hearing listing the costs hearing for 20 and 21 st November 2023.

9. On 28 September 2023 the Claimant applied to the Tribunal to postpone the hearing stating that she was unwell and continuing with medical treatment and that she was unable to work because it exacerbated her symptoms. She attached a letter from her GP dated 18 August 2023 and stated that she had consulted a specialist clinician who had provided advice. The Claimant also said that she had pre-booked annual leave from 17 November 2023 for 3 weeks and would be away.

10. On 16 October that application was refused on the basis that there was no evidence from the specialist doctor or of the date when the annual leave and/or trip away had been booked. The Claimant was told that unless the travel arrangements had been made prior to the listing and could not be rearranged, they would not amount to suitable grounds for postponement.

11. In response on 17 October 2023 the Claimant made a second application for postponement, attaching a further GP letter dated 17 October 2023, together with another copy of the 18 August letter and a third letter dated 3 October 2023. She also attached a letter to the BMA (British Medical Association) and a joint letter from some medical societies dated 16 October 2023.

12. On 25 October 2023, the Claimant emailed the Tribunal again to say that in another of her tribunal claims, the Judge had agreed not to list her case before 1 March 2024 to permit her time for her health to recover sufficiently before the hearing. The Tribunal made investigations and located the letter to which the Claimant was referring. Further postponement requests were made by the Claimant on 2 and 8 November 2023, with further attachments, but no further medical evidence.

13. On 15 November 2023, the Tribunal wrote a long letter to the Claimant in which it gave its reasons for refusing the postponement application. In summary it noted that no information had been provided about the foreign travel and it was not clear whether that ground was still relied upon. Secondly, there was still no information from the specialist who was said to have suggested a 3–4-month delay and the only information available was the GP letter which stated that the source of the stress was the proceedings themselves. It noted that the Claimant had produced a 57-page skeleton argument for the costs hearing and that the prejudice to the Claimant would be mitigated as the issues were essentially submissions.

14. Following dismissal of the postponement application, the Claimant did not make any further postponement application and did not inform the Tribunal was she was not going to attend. She did not contact the Tribunal with any further information regarding her health. No appeal has been made against the decision to refuse the postponement application.

15. The Tribunal records in its judgment the steps it took on the morning of 20 November 2023 when the Claimant failed to attend the hearing. Having satisfied itself that the Claimant was not delayed and was not intending to attend, it decided to proceed in her absence. THE JUDGMENT OF THE TRIBUNAL

16. In its judgment, the Tribunal set out the factual circumstances in which it had decided to proceed in the absence of the Claimant and the efforts made to contact her on the morning of 20 th November 2023 (§§5-16) giving its reasons for doing so. It then set out the basis of the application and gave a self-direction in law (§§22-37). Having summarised the parties’ submissions (§§38-53) it set out conclusions. It found that threshold tests in both rule 76(1)(a) and (b) were met. At §61 it found, “Her conduct did, as respondent outlined, result in a very lengthy hearing that a considerable number of witnesses (sic). It also led to an excessively voluminous bundle. It therefore meant that greater cost was incurred both for the respondent and for the employment tribunal whose resources were given to a lengthy and complex hearing.”

17. Having found both threshold tests met (§69) it then exercised its discretion in favour of making a costs order by reference to its findings as to the Claimant’s knowledge of the law and lack of representation, the fact that no deposit order had been given, but a costs warning had and in light of the Claimant’s submissions about potential implications pursuant to Articles 2, 6, 8 and 10 of the European Convention of Human Rights.

18. The Tribunal then concluded that it was appropriate to order the Claimant to pay £20,000 (§74). THE HEARING ON THIS APPEAL

19. The Claimant appeared in person, assisted by Dr Philip Howard as MacKenzie Friend. I heard submissions from both Dr Howard and Dr Prasad. Neither of them could be persuaded to address the permitted Grounds of Appeal, which had been drafted by the ELAAS representative for the Claimant shortly before the rule 3(10) hearing and which were the only grounds permitted to proceed to the full hearing.

20. I have had the benefit of a skeleton argument on behalf of Dr Prasad, which I re-read following oral submissions, which covers both this appeal and the two others which I heard at the same time, extending to some 103 pages in total. The submissions relevant to this appeal, which appear between pages 65 and 72, do not address the permitted Grounds of Appeal either, although they are structured by reference to the grounds as headings. Many of the points raised concerned the possibility that the liability appeal in EA-2022-001445 might be successful, such that the underlying factual assumptions in the costs decision should be re-visited. I dismissed that appeal and therefore these points fall away.

21. During the hearing, the Claimant offered to hand up to me copies of medical evidence which she submitted had been before the Tribunal when it considered the costs application. However, subsequent investigation of the file and contemporaneous documents revealed that no further medical evidence had been submitted to the Tribunal after 17 October 2023 and which was before the Tribunal when it refused the Claimant’s postponement application. In the circumstances, I declined to admit the further medical evidence, because it was extremely late in the day and I was satisfied that it was evidence which was not before the Tribunal at the time it was deciding the matter and there was insufficient evidence before me to suggest that there was any good reason why the evidence had not been placed before the Tribunal.

22. Dr Howard made the submission that it would not have been lawful for the Claimant to settle her case against the Trust, because section 43 J Employment Rights Act 1996 precluded compromise of protected disclosure cases. He also submitted that the Trust’s open offer to settle was both unlawful and relevant to the exercise of the costs discretion. As none of these issues are in any way relevant to the permitted grounds of appeal and do not appear to have featured at all in this case before the Tribunal, I propose to say no more about that issue.

23. Dr Prasad insisted that her claims were all ‘very strong’ and that notwithstanding what the Tribunal had found, evidence in support of them had been provided to the Tribunal and it was wrong of the Tribunal to have found otherwise. She invited me to read the bundle of approximately 350 pages of testimonials, emails, letters and other correspondence, which she has gathered from supporters including colleagues, other clinicians, an MP, a journalist, all of whom express their opinions of her, whether as a clinician or more generally as a person. She told me that she strongly believed that all her claims had merits and that the evidence showed that she was being punished for raising concerns about patient safety.

24. Dr Prasad also pointed out to me that there had been dispute between the parties about the contents of the bundle for use at the Tribunal hearing of the Second and Third Claims. She told me that this had led to the bundles being agreed and prepared only very shortly before the hearing, which she said had left her at a disadvantage as a litigant in person, raising the problem of equality of arms, given that the Respondent had instructed King’s Counsel to represent them. I note that at the hearing of the Second and Third claims, the Claimant was represented by experienced specialist employment counsel. It was unclear to me how any of these matters could be relevant to the exercise of the costs discretion at a different hearing which Dr Prasad had not attended.

25. In respect of the postponement application, Dr Prasad submitted that it was a matter of ‘serious concern’ that the Regional Employment Judge had accepted her medical evidence and postponed a different hearing, but that the Tribunal in the costs application hearing had rejected the same evidence. Her submission was that this inconsistency meant that her postponement application ought to have been granted. She reminded me that the costs warning letter from the Respondent, which referred to costs of £179,000, was perceived by her to be extremely threatening. Dr Howard supported this last point and reiterated some earlier submissions, adding the submission that costs orders against those who have made protected disclosures will tend to have a chilling effect on whistleblowers and that to order costs against a whistleblower undermines the protection Parliament has provided. Dr Prasad finally submitted that proportionality also needed to be considered.

26. The Respondent was represented by Ms Criddle KC. She submitted that the settlement offer was not relied upon at any point by the Claimant in her response to the costs applications and that it was not relevant to any of the permitted Grounds of Appeal. She took me to various parts of the Tribunal’s decision in support of her overarching submission that the Judgment was a model in respect of the self-direction in law but also its treatment of the facts and their application to the relevant legal principles.

27. She submitted that the Tribunal had understood rule 76(1)(a) and (b) and considered each limb separately and by reference to the relevant legal principles. The application had been made in respect of some parts of the claim which were demonstrably incapable of succeeding. Therefore, it was objectively seen, unreasonable for Dr. Prasad to have pursued these allegations. There was no factual basis upon which it could be said that the Tribunal had left anything relevant out of account. In respect of the postponement application, she submitted that there was no appeal against the decision communicated in the letter of 15 November 2023 and that there was no further postponement application made. THE LEGAL FRAMEWORK

28. Rule 76(1) of the ET Rules 2013 provides, “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…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; or (c) A hearing has been postponed or adjourned on the application of a party made less than seven days before the date on which the relevant hearing begins.”

29. In FDA v Bhardwaj [2022] ICR 1541 , at [45-48], Griffiths J gave the following guidance regarding citation of authorities in respect of statutory wording in general, but specifically with reference to the above provision: “45. Authorities on statutory wording can be divided into those which clarify and explain points of principle, and those which reach outcomes on particular facts. The former are obviously helpful: they save time and promote consistency. The latter are fact-specific decisions which are not to be applied as barnacles to the smooth surface of ordinary words and phrases which should be allowed to speak for themselves.

46. Any appeal on costs is, in the words of the Court of Appeal in SCT Finance Ltd v Bolton [2003] 3 All ER 434 at para 2, ‘overcast, from start to finish, by the heavy burden faced by any appellant in establishing that the judge’s decision falls outside the discretion in relation to costs conferred upon him . . . For reasons of general policy, namely that it is undesirable for further costs to be incurred in arguing about costs, this court discourages such appeals by interpreting such discretion very widely. . .’

47. Just as the use of authorities has long been discouraged in connection with broad statutory discretions to extend time (starting with the deprecation by Phillips J of “very simple, wide words becoming encrusted by the barnacles of authority” in Hutchison v Westward Television Ltd [1977] ICR 279 , 282 C), so must the citation of authority in applications for costs be strictly constrained to those which genuinely establish a point of principle not readily apparent from the words of the rules themselves.

48. It is in the nature of costs application that they should be relatively straightforward, otherwise what might be thought of as parasitic on main litigation may get out of hand. This case is an example of that happening.”

30. Having set out the general principles, he explained how it was ‘particularly undesirable’ that reported cases on costs be cited based on some actual or argued similarity of fact in order to support the proposition that a similar approach or outcome was required. He noted that the temptation to apply this line of reasoning was strong in cases where appellate courts had endorsed the approach taken by the first instance tribunal, but added, “53. The most striking cases on costs are those in which the decision below has been overturned. But even then, this is likely to be because of particular facts. There can be so little confidence that a general principle is thereby established that the trouble of researching and citing such cases should be avoided.”

31. It is against this background that Griffiths J then set out the proper approach to the application of rule 76, “54. Rules 76(1) speaks for itself. It imposes a two-stage test, approved by Underhill J in Vaughan v Lewisham LBC [2013] IRLR 713 , para 8. The first question is whether the requirements of rule 76(1) are met, whether under (a) or (b). If they are, a tribunal may make a costs order, but the opening words of rule 76 show that there is a discretion whether or not to do so. It by no means follows that because it may make a costs order, it will proceed to do so. It has a discretion and in many cases it does not do so and is entitled not to do so. The discretion is to be construed very broadly and it would require a clear error of principle to justify an appeal, whether for or against an order for costs.” GROUND 1

32. This ground asserts that the Tribunal erred in that it failed properly to direct itself that when considering whether a ‘claim’ has been brought or conducted unreasonably for the purposes of Rule 76(1)(b), it must consider each cause of action alleged separately and not merely the proceedings as a whole. In doing so, reliance is placed on the decision of the EAT in Opalkova v Acquire Care Limited EA-2020-000345 .

33. The framing of the Ground of Appeal seeks to elevate the decision in Opalkova into giving rise to a point of general principle which would result in an error of law should the approach not be followed in every case. However, properly analysed, Opalkova is an application of the words of rule 76(1) to the facts of the case then before the EAT.

34. In Opalkova , the Claimant litigant in person sought a time preparation order against the Respondent employer following her success in establishing 3 out of 6 claims which were all for unlawful deduction of wages or failure to pay contractual pay. Notwithstanding that, the Tribunal assessed whether the Respondent had reasonable prospects of success of defending the claims by considering the ET3 as a whole, regardless of there being 6 different statutory causes of action. Importantly, on the facts in Opalkova , the merits of defending each of these claims varied considerably. Accordingly, it was not open to the Tribunal to take a ‘swings and roundabouts’ approach to whether the threshold test in rule 76(1)(b) was met. Consideration of defence of the claims taken as a whole was insufficient, it needed to look more carefully at whether it was reasonable to have mounted and persisted in the defence of each cause of action separately.

35. Opalkova is not authority in my judgment for the first proposition asserted on this appeal, that a Tribunal will err in law if it ‘fails to direct itself’ that a claim in rule 76(1)(b) is a reference to each separate statutory cause of action. Less still does it provide any support for wider proposition also put forward by the Claimant, to the effect that a Tribunal will be found to have acted ‘perversely’ should it not ‘carry out the exercise required by Opalkova’ . What the ‘exercise’ is said to entail is not particularised by the Claimant in her grounds or submissions, but if it is suggested that the Tribunal is required in every costs application to set out in its reasons each statutory cause of action separately and make a finding with reasons as to whether it was reasonable to bring it, this would, to repeat the metaphor adopted by Griffiths J in FDA v Bhardwaj , amount to heavy barnacle encrustation of the statutory words. Moreover, it would be at odds with the guidance of Griffiths J at paragraph 48, that costs applications should be ‘relatively straightforward’.

36. In my judgment, the natural and ordinary meaning of the words of rule 76(1)(b) simply requires the tribunal to assess whether a claim or the response to a claim had no reasonable prospect of success. That will be a fact-sensitive exercise. In some cases, it will be necessary to descend to the level of separating out statutory causes of action for consideration on an individual level. In others, a tribunal may well be able to group certain causes of action together, because they all bear the same hallmarks or share similar shortcomings. In some cases, it may well be possible to look at the proceedings as a whole because there is no material difference between the unreasonableness of any of the claims made. Every case will turn on the precise allegations in issue and the manner in which they are formulated or responded to. Generalisation from the facts of Opalkova , or indeed any example case where the provisions of rule 76 are being applied, is neither necessary, nor helpful.

37. In any event, it seems to me that the nature of the claims made by the Claimant in the Second and Third claims and the manner in which the Respondent’s application for costs was presented make this a very different situation to that which had arisen in Opalkova .

38. The application was presented by the Respondent on the basis of having forensically analysed the list of agreed issues and identified by reference to the findings in the liability judgment, those allegations which the Tribunal had accepted could not have succeeded, whether because the Claimant had alleged direct sex discrimination where her comparator was a woman, or race discrimination where her comparator was the same race as her, or even where she had asserted detriment by reason of the Respondent having not done something which no reasonable employee would have expected them to do.

39. It was not therefore really possible for the Tribunal to fall into the same trap as had happened in Opalkova : it was not being suggested that the rule 76(1)(b) threshold was met in respect of the entire proceedings: indeed, the entire application proceeded instead on a detailed analysis of each claim and the basis on which it had failed by reference to the findings which had been made by the tribunal in the Second and Third claims judgment. Moreover, the Tribunal set out its findings comprehensively at §59, “We conclude that some parts of the claim had no reasonable prospects of success and that that was clear on an objective basis from the moment that they were set out and certainly they should have been come (sic) clear to the claimant during discovery and exchange of witness statements. This is not a case where a claimant could not make an appropriate judgement on a discrimination claim until the respondent’s explanation could be seen and tested. For example, the chances of succeeding in an equal pay claim based on different hours and not different pay, a sex discrimination claim based on a female comparator, and detriment claims for which the protected disclosure was never produced did not depend upon hearing evidence in the employment tribunal. They could never succeed.

60. We note again the comment made at paragraph 159 of the Employment Tribunal’s Judgment that the tribunal doubted whether the claimant really believed some of the claims she was making. The judgment gave examples of these including race discrimination allegations when the comparator is the same race, and sex discrimination allegations where the comparator was the same sex. The tribunal concluded that the factual premise of many allegations were (sic) simply wrong. We are therefore satisfied that in continuing to bring this litigation the claimant was also acting unreasonably”

40. The Tribunal by these findings showed that it had carefully considered the full list of allegations said to fall within the unreasonable category and set them out in full in its judgment at §41. It obviously had well in mind the appropriate threshold test and was entitled to find it met both in relation to rule 76(1)(b) as well as rule 76(1)(a).

41. It is not a valid criticism to suggest that the Tribunal needed to set out separate reasons in respect of each allegation why it was unreasonable. It was more than sufficient in the circumstances for the parties to understand the outcome that the Tribunal had considered a list of allegations and found them all to be unreasonable as they fell into the categories identified.

42. It follows that Ground 1 is dismissed. GROUND 2

43. Ground 2 makes various complaints which overlap. Again, I was not assisted by any oral submissions from the Claimant or Dr Howard in support of this Ground.

44. The gist of the complaint in the ground appears to be that the Tribunal failed to separate out consideration of the threshold test for rule 76(1)(a) from 76(1)(b) and therefore did not address its mind to the question of whether it ought to have been appreciated by the Claimant that many of her claims were unsustainable. This Ground is hopeless in my view, because it is entirely met by the finding I set out above at §59 of the Tribunal judgment in which it states that it was clear ‘from the moment they were set out’. This finding must be read together with paragraph 41, in particular sub-paragraphs a, b and c which list the specific causes of action which were doomed from the outset to fail. Then, the Tribunal refers to unreasonable conduct in pursuing cases after disclosure and exchange of witness statements. The only sensible reading of this part of the judgment is that it be read together with paragraph 41, sub-paragraphs c, d, e and f which outline various categories of allegation where there was simply no evidence which could support the complaint.

45. The Ground also suggests that the Tribunal needed to set out explicitly whether the Claimant was being judged by the standards of a professional legal representative at that stage. However, again that criticism overlooks the express findings at §63- 65 of the judgment, under the heading “Knowledge of the law/lack of representation” “63. Bringing claims where the factual premises are incorrect, or where the claimant is unable to identify the part of a policy she states is being breached are not mistakes of law which an inexperienced individual representing themselves might make. These are matters of fact which would have been within the claimant’s own knowledge and did not require legal expertise to analyse.

64. While the claimant refers to herself as a litigant in person as there is no legal representative formally on the record, she is, however, a professional with significant litigation experience. She was also supported by legal advice at every hearing stage.

65. By the time she brought these claims she had already lost a sex discrimination claim and been ordered to pay costs. She would have been well aware that it was not enough to make a mere assertion of difference in treatment and a particular protected characteristic to succeed in a discrimination claim.”

46. The Tribunal had well in mind therefore when forming its assessment that the Claimant was not legally qualified. It was more than entitled to take into account her experience of litigation more generally. However, fundamentally, its point was that no legal experience was needed: the problems with the claims were basic factual matters which would have been readily apparent to any litigant who was taking basic care when making serious allegations of discrimination, victimisation and protected disclosure detriment.

47. The Tribunal did not fall into any error in its appreciation of the evidence by reference to rule 76(1)(a) and properly performed its task in assessing whether the threshold of unreasonable conduct had been met separately from its analysis that the some of the claims had no real prospect of success under rule 76(1)(b). This Ground is dismissed. GROUND 3

48. At §32 of its judgment, the Tribunal made the following self-direction in respect of causation of unreasonable costs, “There is no requirement to link any more causally to particular costs which are being incurred as a result of specific conduct that the employment tribunal identifies as being unreasonable ( Salinas v Bear Stearns International Holdings Inc [2013] IRLR 713 ). There is no causation test to be applied when considering whether to make an Order under rule 76, or if so, on what terms.”

49. The Tribunal cited the well-known passage from Yerrakalva v Barnsley MBC [2012] ICR 420 at para 41, which requires the Tribunal to identify unreasonable conduct and then what effects it had. It explained that the ratio of McPherson v BNP Paribas [2004] ICR 1398 , was to reject the contention that there needed to be a precise causal link between unreasonable conduct and specific costs in order for a costs order to be made.

50. I have already referred to the fact that the Tribunal made specific findings at §61 of its judgment about the effects of the Claimant’s unreasonable conduct on the case which had led to an increase in complexity and costs. These were findings it was more than entitled to make on the evidence before it and in light of two members of the Tribunal also having been on the Tribunal which heard the Second and Third claims. There is no challenge to those findings.

51. By Ground 3, the Claimant seeks to assert that use of the phrase ‘there is no causation test’ at §32 amounted to a misdirection in law. I reject that submission as being a semantic point, which takes that phrase out of context of the judgment as a whole. When read fairly, it is abundantly clear that the Tribunal both directed appropriately in law by reference to the leading authorities which I have referred to above, understood the task which was before them and made appropriate findings in accordance with the correct test. It did what Yerrakalva requires a tribunal to do, namely consider whether unreasonable conduct or claims with no reasonable prospect of success have had an effect on costs of proceedings and to assess in broad-brush terms what that effect has been. GROUND 4

52. The Claimant asserts that it was an error for the Tribunal to proceed in her absence when there was ‘evidence of her ill-health’ before the Tribunal. This Ground amounts to an attempt to re-argue the failed postponement application of 17 October 2023, the refusal of which on 15 November 2023 is not subject of any appeal.

53. In fact, the Tribunal did not have any ‘evidence of ill-health’ before it, because there was no application by the Claimant for postponement, whether on basis of medical grounds or otherwise. In fact, the Tribunal made plain that it did not understand any reason for her non-attendance and went to considerable lengths in order to find out whether she had been delayed in getting to court as set out at paragraphs 5 to 11 of its judgment. It seems to me that the factual premise of this Ground of appeal is not made out and there was no evidence in respect of medical reasons for non-attendance before the Tribunal as at 20 th November 2023.

54. Insofar as this Ground seeks to challenge the exercise of the discretion of the Tribunal, having failed to contact the Claimant, to decide to proceed in absence, that was a case management decision, the reasons for which are set out comprehensively at paragraphs 12-16 of the decision and was one which fell well within the range of decisions open to the Tribunal. It was entitled to conclude that the Claimant had chosen not to attend and had effectively made herself non-contactable. It properly weighed the prejudice to her, bearing in mind that it had received some 57 pages of written submissions and was entitled to conclude that the interests of justice required the hearing to proceed. There is nothing in any of the written or oral submissions made to be which could begin to suggest that the Tribunal erred in law in taking this approach. Neither Article 6 ECHR (nor Article 2 to which Dr Howard referred in submissions) disentitles a tribunal to proceed in the absence of a party if it determines that the interests of justice so require. The resources of the employment tribunals are overstretched and postponements cause delays not only to the case which has been put back but others which are waiting in the list also to be heard. CONCLUSION

55. The appeal is dismissed.