Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of Mr Brooks v Nottingham University Hospitals NHS Trust UKEAT/0246/18/JOJ the EAT considered whether the Employment Tribunal had been correct to make a costs order of £170,000 against a Claimant.

The facts in Mr J Brooks v Nottingham University Hospitals NHS Trust

Mr Brooks, (the ‘Claimant’), was employed by Nottingham University Hospitals NHS Trust (the ‘Respondent’) as a Consultant plastic surgeon.  From between April 2011 to October 2014, the Claimant raised a number of complaints with the Respondent about staffing levels and others matters relating to the department he worked in which, in his view, had consequences for the health and safe of patients.

The Claimant claimed to have made a total of 18 protected disclosures within the meaning of the Employment Rights Act 1996 and as a result of making those disclosures, he was subjected to a number of detriments by the Respondent.  He went on the take a claim in the Employment Tribunal (the ‘ET’) for whistleblowing.

The decision of the Employment Tribunal

The Claimant’s claims were considered over the course of a 27-day hearing.  Although the ET found that the Claimant had made a number of protected disclosures and had suffered a number of detriments, it concluded that the Claimant failed to establish causation between the two.  In coming to that conclusion, the ET was influenced by, in particular, draft correspondence which the Claimant had written before the first of his alleged protected disclosures. That correspondence suggested that the matters of which he was complaining were very similar to issues he had raised previously.  The ET held that that document showed very clearly that from the Claimant’s perspective, he was already being subjected to the kind of behaviour he was complaining about and that there was not a ‘sea change’ after he started making the protected disclosures as he had alleged.

This led to considerable doubt as to the reliability of the Claimant’s evidence.  The ET held that he was distorting the truth in relation to a central theme of his evidence and was unable to show causation between the protected acts and the detriments he was alleging.  As a result, his whistleblowing claims were dismissed in their entirety.

The Respondent made an application for costs following the ET’s dismissal of the Claimant’s claims and the Claimant resisted the application on the grounds that his claim was arguable and not one which had no reasonable prospects of success.

However, the Respondent was successful in their application.  The ET held that any reasonable and objective person looking at the evidence which was available to the Claimant at the start of process would have concluded that the claims had no reasonable prospects of success and therefore pursuing them was unreasonable conduct on the part of the Claimant. The Claimant was ordered to pay the Respondent’s legal costs totalling £170,000.

The Claimant appealed to the Employment Appeal Tribunal (“EAT”).

The decision of the Employment Appeal Tribunal

Rule 76 of the Employment Tribunal Rules of Procedure 2013 states that an ET can make a costs order where a party or their representative has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’ or where a claim or response had: ‘no reasonable prospect of success’.  Rule 84 allows an ET take into account a party’s ability to pay when making a costs order.

The Claimant appealed the costs order on the following grounds:

  1. The ET’s conclusion that the Claimant’s claim had no reasonable prospects of success was perverse.
  2. The ET’s conclusion that the Claimant acted unreasonably in pursuing the claim was perverse.
  3. The ET’s decision to award costs was perverse in circumstances where it was found that the Claimant did not act in a deliberately dishonest manner.
  4. The ET had erred in failing to take into account public policy considerations applicable to NHS whistle-blowers and the need to avoid deterring them from making complaints.
  5. The ET had taken irrelevant matters into account.
  6. It was not clear why the ET concluded that the Claimant’s claim had no reasonable prospect of success.

The EAT held that the ET’s decision to award a costs order could not be categorised as perverse.  They had been entitled to find that his entire case was founded on his unreasonable conduct in distorting and embellishing evidence in relation to the 3 central pillars of his claim and it ought to have been clear to the Claimant that the critical elements of causation, the establishment of which was necessary in order to succeed, could not be established.  It was therefore open to the ET to conclude that the Claimant had proceeded with his claim unreasonably. 

With regards to the Claimant not acting in a deliberately dishonest matter, the EAT held that whilst that may have been true, the proper test for the ET was not whether there had been dishonest conduct on the part of the Claimant, but whether there had been unreasonable conduct in bringing proceedings, which was an objective test.  The EAT held that the ET were entitled to find that the Claimant had acted unreasonably.   

The Claimant’s public policy arguments were dismissed by the EAT as having no merit due to the fact that there is nothing in the ET Rules which provides for special treatment of whistle-blowers, whether working in the public sector or elsewhere.  Finally, with regards to taking irrelevant matters into account (the NHS’s ‘stretched resources’ had been referred to by the ET), the EAT held that the reference made by the ET did not disclose an automatic error of law on the part of the ET.  It was clear that they had made the costs order on the basis of the Claimant’s not insignificant means and the reference could not be said to render the ET’s decision as to costs unsafe.

The Claimant’s appeal was dismissed.  Ultimately the Claimant failed to demonstrate that the matters he was relying on crossed the high threshold of perversity.

Our solicitors’ views on the case of Mr Brooks v Nottingham University Hospitals NHS Trust

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case: “This case highlights that it is not a pre-condition of a costs order that a party act dishonestly, merely unreasonably, which is an objective rather than subjective test.  In addition, even where a party can establish 2 out of the 3 central elements to a claim, the bringing of the claim can still be found to have been unreasonable where there is a complete failure to establish the third.’

The decision of the Employment Appeal Tribunal in Mr Brooks v Nottingham University Hospitals NHS Trust UKEAT/0246/18/JOJ can be found here.


Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Tagged with →  

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry


    4.81 Average

    313 Reviews


    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 1 day ago


    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 3 days ago


    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 4 days ago


    Very quick and professional service , Rana was very helpful

    Posted 4 days ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 6 days ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 1 week ago

    Paul L

    Sacha was extremely helpful in my matter. I would not hesitate you use Sacha or Redmonds again. Everyone was very helpful.

    Posted 2 weeks ago

    Monique N

    I had Mel Chin helping me with a settlement and she was very professional and reliable throughout my case. Mel provided me with a good understanding of what was happening and gave suggestions on routes I could take. My case was resolved and closed promptly although the opposing side were very difficult to deal with. A very big thank you to Mel and Chris.

    Posted 2 weeks ago

    Jackie C

    My first ever experience needing the services of a solicitor; cannot speak highly enough of Mel and Chris’s personable, reassuring and straight to the point advice in dealing with my settlement agreement. They put me at ease during an extremely stressful time. I am equally as happy with the outcome, as l am their professional services.

    Posted 3 weeks ago


    Really happy with the service. All very efficient. Mel rattled through things very fast, however was great whenever I needed to stop and ask a question! Would definitely return to Redmans if I ever needed Legal advice.

    Posted 3 weeks ago

    Peter F

    Very helpful and clear advice, would highly recommend.

    Posted 3 weeks ago

    William A

    Second time I have had to use Redmans. They did not disappoint. They are fast , efficient and friendly. I have already recommended them to friends and colleagues. I hope I dont have to use them again but if I have to , they are the solicitors for me.

    Posted 3 weeks ago

    Fleeta C

    Great service with tantastic communications. The solicitor responsible is extremely knowledgeable and was responsible for bringing a timely and desired solution.

    Posted 3 weeks ago

    Veronica M

    Extremely helpful, starting from a request for advice at very short notice, to dedicating time for me to understand and review all documents thoroughly.

    Posted 3 weeks ago

    Sophie R

    Very efficient and professional service. Chris was very empathetic, knowledgeable and personable. Highly recommended.

    Posted 1 month ago

    Melanie M

    Very happy with the detailed advice provided from Redmans. They also helped me to secure a higher settlement than originally offered by my employer and were extremely diligent. I first spoke with Chris at relatively short notice and then Sacha dealt with my case. Would definitely recommend and use again in the future if needed.

    Posted 1 month ago


    Redmans helped me with a work related issue, which was resolved quickly and professionally. I would definitely recommend this company.

    Posted 1 month ago

    James F

    Great people, really friendly and professional helped with everything that I needed.

    Posted 1 month ago

    Anusha S

    My case was handled by Sacha who was very thorough and helped me to achieve a good outcome with my employer. Sacha was very personal, professional and helped me during quite a stressful time, so I am hugely grateful to her and to Redmans. This was my first time engaging with a law firm so I wasn't sure what to expect but I can definitely say that it was a good experience overall and I ended up better off due to having the help of an experienced and proactive solicitor on my side.

    Posted 1 month ago

    Diane P

    So grateful that I contacted Redmans to deal with my Redundancy Agreement. Everything from the initial call to the completion of the matter was professional, efficient and effective. I was listened to, had everything explained simply and kept informed of every step. I received super advice and the costs were very competitive. I would highly recommend them to anyone seeking similar help. First class service - thank you

    Posted 1 month ago

    Chris L

    It was a very efficient and effective service - Would recommend.

    Posted 1 month ago