Understandably, Employment Tribunals often provide a lot of assistance to litigants in person. However, it is important to remember that, despite such efforts to ensure cases are dealt with justly for those without representation, litigants in person are not exempted from compliance with the rules and orders of the Tribunal. The EAT’s decision in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16 provides a salutary reminder in this regard, specifically in relation to the Tribunal’s regime for adverse costs awards.
In Liddington, the EAT upheld the Tribunal’s order for costs against the Claimant, a litigant in person, made on the basis of unreasonable conduct. In this instance, the unreasonable conduct consisted of Ms Liddington repeatedly failing to provide the required information to properly particularise her claims.
As a litigant in person, Ms Liddington issued various claims against her former employer, including for whistleblowing, religious discrimination and constructive unfair dismissal. Her claims were deemed to be insufficiently particularised. Through correspondence and at several preliminary hearings the Tribunal made efforts to assist Ms Liddington in providing the further information required, including: dates of certain protected acts; details of detriments alleged; and, details of comparators in the discrimination claims. Despite being given numerous opportunities to provide the further particulars required, the Claimant failed to so.
Three further preliminary hearings were held between May and August 2015, which were intended to consider strike out and deposit orders made by the Respondent. At the third of those hearings, amongst other things, the Employment Judge made an order for costs against Ms Liddington, in the sum of £1,481. The Judge concluded that, although the standard of pleading required of a lawyer did not apply to a litigant in person, Ms Liddington’s failure to provide the requisite information at the hearing in May 2015, after efforts to assist in particularising her claims had been made at numerous prior hearings, amounted to unreasonable conduct. She should have been sufficiently prepared for that hearing to be able to communicate at least the details of what had been said or done, by whom and when.
Ms Liddington appealed. The EAT rejected all the grounds of appeal, including the argument that the Tribunal had, wrongly, regarded the inability of a litigant in person to properly particularise her claims as unreasonable conduct in and of itself.