The Claimant went off sick during and after the Covid period and was invited to sickness absence meetings which were concerned with her health, wellbeing and prospects of returning to work. The Claimant brought a claim under sections 10 and 11 of the Employment Relations Act 1999 (“ERA 1999”) alleging that she had been denied the statutory right to be accompanied at a disciplinary meeting. The ET ruled that the meetings were not disciplinary hearings, nor grievance hearings, within the meaning of s.10 ERA 1999 and found that the Claimant understood them to be sickness absence meetings, had attended similar meetings previously and had never suggested at the time that they were disciplinary in nature. The ET dismissed her claim. The Respondent made a costs application and was awarded over £14,000 in costs. The Claimant appealed.

The EAT allowed the appeal. The ET was entitled to exercise its discretion to make a costs’ order against the Claimant, having found that her claim had no reasonable prospects of success and that she had acted unreasonably in pursuing it despite legal advice and repeated warnings. However, in assessing the Claimant’s ability to pay under rule 84 of the ET Rules 2013, the ET had regard to the earnings of the Claimant’s husband but failed to identify how those resources affected the claimant’s own ability to pay, contrary to the approach in Abaya v Leeds Teaching Hospital NHS Trust and QR v The GI Group Ltd. The ET focussed on household income rather than identifying what part was the Claimant’s personal ability to pay. Having awarded a specified sum within the £20,000 statutory cap, the ET was required to undertake a summary assessment of costs and give brief reasons. The ET failed to scrutinise the costs claimed for reasonableness and proportionality before awarding £14,123.39, the full amount of costs claimed without deduction.