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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.

About

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).

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