The EAT decision in Madu v Loughborough College [2025] EAT 52 acts as a stark reminder that simply because a claimant is represented, does not mean that they are receiving what they deem to be competent legal advice. It also reinforces what we already know – how difficult it is to successfully obtain a costs order generally in the Tribunal and particularly where a litigant-in-person is involved.
The Facts of the Case
Madu, the Claimant, was a Black-British man of African descent. In late 2018, he applied for a part-time lecturing position at Loughborough College, the Respondent, which is a further education college. Two other candidates had also applied for a job, and ethnically, they were White-British (AB) and White-Irish (DW). Madu was unsuccessful at interview, scoring below AB but better than DW. He felt that he was not appointed to the position he had applied for based on his race and subsequently brought a race direct discrimination claim. He relied on factors such as:
- The College had not moved his interview time whereas they had postponed DW’s interview.
- The College delayed in responding to his request for feedback and his grievance.
Madu also pointed to the racial demographic of staff at the College, noting that only 2.9% of staff were non-white.
The discrimination claim was lodged in March 2019 and Madu, at the time, was a litigant-in-person (LIP). He subsequently obtained legal representation in September 2020 and his claim was heard before the Tribunal in November 2021 and May 2022. The Tribunal dismissed his discrimination claim – but then the College applied for costs, arguing Madu’s claim had no reasonable prospect of success (and therefore, they had wasted costs having to defend a claim that was set to fail from the start).
The Tribunal’s decision on costs
As a reminder of the test for a costs order, the Tribunal has the discretion to make a costs order where:
“a party (or that party’s representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted” (emphasis added) or “any claim, response or reply had no reasonable prospect of success” – Rule 74 of the Employment Tribunal Rules 2024.
The Tribunal’s position was that Madu should have known that his claim had no reasonable prospect of success, both initially as a LIP and after obtaining legal representation, and surely, his legal representative would have advised him similarly. Madu was subsequently ordered to pay £20,000 of the Respondent’s costs.
The EAT’s position
On appeal from Madu, the EAT seemed to entirely disagree with the Tribunal’s position on several aspects, namely:
- It had incorrectly assumed that when Madu obtained legal advice, he must have been advised that his claim had no reasonable prospect of success.
- It had not considered how difficult it is for a LIP to determine whether a discrimination claim does or does not have a reasonable prospect of success. Discrimination claims are notoriously complex given, for example, the lack of overt evidence (as was the case here) and such cases can depend on understanding the decision maker’s motivation which may only come to light through cross-examination at a final hearing.
- The Tribunal had held Madu, when he was a LIP, to a higher standard than it had the College, who had legal representation throughout. It had done so by assuming that Madu should have realised his claim did not have a reasonable prospect of success but simultaneously holding that it was irrelevant that the College did not apply for a strike-out (i.e., an application for a claim to be dismissed and not proceed any further) and thereby, almost excusing the College of this lack of action.
The EAT also found that there were facts in the case that could have in fact led to Madu believing there was some support for his claim (and therefore, that it did have some reasonable prospect of success) e.g., the fact that both him and DW had asked for their interview to be moved, but it was rejected for him and allowed for DW, and that it was entitled to consider the statistics regarding the amount of non-white staff at the College. It appears the Tribunal did not consider the nuances of the facts at hand.
The costs award was then overturned, and the College’s costs application was sent back to the Tribunal for reconsideration.
What’s the takeaway?
- As we already know, it is extremely difficult to successfully obtain a costs order against a LIP in the Tribunal – they really are the exception. Given they are not represented, LIPs tend to (understandably) be given a substantial amount of leeway in navigating the Tribunal procedure and this will especially be the case in claims that are considered to be “complex” such as discrimination or whistleblowing. Further, the test for cost orders sets a high threshold and particularly when a LIP is involved, such threshold is not likely to be met particularly often.
- Employers (and Tribunals) should not be making assumptions as to what legal advice may or may not have been given. The advice between a client and their adviser is protected by legal professional privilege (LPP) and inferring that certain advice was provided, even if an employer (and Tribunals) deemed that certain advice to be what a competent legal adviser would give, undermines the principle of LPP.
- If an employer thinks a claimant’s claim has no reasonable prospect of success, they should instead consider pursuing a strike out application or giving a clear and definitive costs warning. This is likely to assist them if they seek a costs order later, as it shows that they did not wait until the end of the trial to raise concerns about the prospects of the claim, in the actual costs application itself.