Employment Law Cases

Liddington v 2Gether NHS Foundation Trust

An EAT decision which serves as a word of caution to some claimants, but perhaps also as a reassurance to employers. The EAT upholds an order made for costs against a litigant in person. Whilst generally, a tribunal will afford unrepresented parties a degree of discretion in how they present their claim and conduct themselves throughout proceedings, this case indicates that there is a limit to that discretion.

The employer is a provider of mental health and learning difficulty services. Miss Liddington was employed as a community practitioner. She claimed that a referral she made was a protected disclosure, and that allegations made against her were a detriment she suffered as a result of making that disclosure. Following a disciplinary process, she resigned and presented claims of constructive dismissal, whistleblowing, religious discrimination, unpaid holiday pay and unpaid expenses.

The employer stated that the claims lacked sufficient detail and clarity to allow them to respond properly and so sought to have the claims struck out. Over a series of preliminary hearings, the tribunal afforded Miss Liddington further opportunities to particularise and clarify her claims. However, on each occasion she failed to do so and eventually withdrew a number of her claims.

The tribunal made a wasted costs order against her in respect of her employer’s barrister fee for attending one of the hearings. Miss Liddington sought a review of the order and eventually appealed to the EAT.

Whilst the appeal judge acknowledged that a litigant in person should not be held to the same standard as a professional representative, and should not be expected to produce documents setting out detailed legal arguments, both the employer and tribunal should be entitled to expect a claimant to explain the claim they are pursuing. A number of different tribunal judges had explained what Miss Liddington was required to do and had given her a number of opportunities to do it. But at a further preliminary hearing she had still been unable to provide basic information such as the dates on which acts of discrimination were alleged to have taken place. This amounted to unreasonable conduct in the course of the proceedings, and so the tribunal was justified in awarding the employer its wasted costs.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2016/0002_16_2806.html