The Claimant brought six separate claims relating to their treatment by the Respondent, their previous employer, before the Tribunal. Only three complaints succeeded in the Tribunal’s judgment of 11 August 2019. The Claimant brought an application for a preparation time order in relation to the three successful claims on the basis that the Respondent’s defences to each claim had no reasonable prospect of success and that they had acted unreasonably in raising them. The application was refused on 3 February 2020.

The Employment Appeal Tribunal allowed the appeal. James Tayler HHJ held that the Tribunal had erred in law by considering whether to exercise its discretion to make an order without first determining whether the objective threshold test for whether each defence had a reasonable prospect of success had been satisfied for each of the three claims. This test would require a consideration of the following questions:

“1) whether the responses to the 3 claims that were successful had no reasonable prospects of success and/or 2) whether defending and/or maintaining defences to those claims constituted unreasonable conduct; and, if so, 3) whether to exercise its discretion to make a preparation time order.”

The case was remitted back to the Tribunal for a redetermination of the application for a preparation time order for the three successful claims.