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Is a miscalculation of a Claimant’s expenditure a material error for the purposes of calculating a Costs Order?
Yes, held the EAT in Ward v Dimensions UK Ltd.

The Claimant brought claims for ordinary unfair dismissal, automatic unfair dismissal and whistleblowing detriment, all of which were dismissed by the tribunal.

The Respondent applied for costs under Rule 76 of The Employment Tribunal Rules and Procedure 2013, on the basis that the Claimant had acted unreasonably, his whistleblowing claims had no reasonable prospects of success, and that the Claimant was in breach of a tribunal Order.  

The tribunal considered the costs order on the basis that the Claimant had acted unreasonably in making multiple Scott Schedule changes and in his refusal of the Respondent’s settlement offer of £18,500 (a year’s salary).

The Claimant had set out his monthly expenditure in his witness statement as £1,245.28, but the tribunal proceeded on the basis of only £690 per month. A costs order was made against the Claimant for £5,000.

The Claimant appealed. The Respondent accepted that the tribunal had proceeded on the basis of an incorrect figure but argued that the error was not material. The Claimant’s true expenses were £1,245.28 (shared bills of £446.82, personal bills of £108.46 and personal expenses of £690 – the figure taken by the tribunal).

The EAT held that whilst the tribunal does not have to take into account the Claimant’s financial mean, the error in calculation here is material and the issue has been remitted to the same tribunal.