The Claimant made a claim for race discrimination after failing to get a job with the Respondent. He was a litigant in person initially but later obtained legal representation. The ET awarded costs against him of £20,000 on the assumption that once he was legally represented he would have been warned that his claim had no reasonable prospect of success. The Claimant appealed.

The EAT allowed the appeal. The ET erred in law in concluding that the Claimant should have appreciated from the outset that the claim had no reasonable prospects of success by having no regard to the difficulties facing a Claimant in ascertaining the prospects of success in a claim that essentially turned on why the decision not to appoint him was taken. Further, the ET did not analyse the nature, gravity and effect of the additional unreasonable conduct.