Mihailescu v Better Lives (UK) Ltd (t/a Bluebird Care) UKEAT/0184/19/BA

Appeal against the ET’s decision awarding costs against the Claimant. Appeal allowed.

The Claimant worked for the Respondent as a care worker on a zero-hours contract. When he ceased to be provided with any work, he brought claims in the ET for notice pay, holiday pay, arrears of pay, and other payments. The Respondent asserted that the Claimant was self-employed, but the ET concluded at a preliminary hearing that the Claimant was an employee working under a contract of employment, and so it had jurisdiction to determine the Claimant's claims. At the liability hearing, the ET dismissed all of the Claimant's claims except for holiday pay, which the Respondent accepted was payable but not for the amounts claimed. The Respondent made an application for costs, and the ET was satisfied the Claimant acted unreasonably in bringing the proceedings and in the way they were conducted, and that "the majority of the claims had no reasonable prospects of success"; as such, it had discretion to award costs, and it made an award of £5,000. The Claimant appealed on the basis that the ET had erred in awarding costs where the Respondent had consistently resisted all aspects of the claim, including employee status, there had been some findings in the Claimant's favour, and the Claimant had succeeded in part of his claim in relation to holiday pay.

The EAT held that the ET was wrong to find that the costs jurisdiction was engaged at all, and that it failed to have regard to all the relevant circumstances in exercising its discretion to award costs. Accordingly, the EAT substituted a decision that there was no discretion to award costs, and the costs award would be set aside.


Published: 02/06/2020 13:49