The Claimant was employed in October 2019 on a one year fixed term contract. In March 2020, the pandemic hit and he was dismissed but two of his colleagues were furloughed. The Claimant brought a complaint of race discrimination, relying upon his two colleagues (not of his race) who were furloughed at the time when he was dismissed, as statutory comparators. The claim failed at trial. The Respondent then applied for costs. The ET decided that the costs threshold was crossed, in particular because, following exchange of witness statements, the Claimant should have realised that his reliance on his colleagues as actual comparators, and his overall claim, had no reasonable prospect of success, but fought on to trial. A costs order of £10,000 was made against the Claimant and he appealed.

The EAT allowed the appeal. The ET erred, in particular having regard to features of the evidence that should have been regarded as giving the Claimant a reasonable basis for continuing with his claim to a trial, at which the Respondent’s witness evidence could be tested, either relying on the colleagues as actual statutory comparators, or relying upon a hypothetical comparator, and on the treatment of the colleagues as evidentially relevant. The ET also erred in a further decision fixing the amount of costs, in particular by awarding costs summarily limited to the maximum amount sought, which was considerably lower than the amount said to have been incurred in the relevant period, but without addressing whether an award of that maximum amount was, in and of itself, reasonable and proportionate.