Late disclosure of occupational health report: costs application refused
A former employee forgot about an occupational health report and disclosed it late. The employer's application for £12,166 in costs was refused by the tribunal.
1 min read · Last updated 18 May 2026
Case details
- #costs-application
- #late-disclosure
- #occupational-health-report
- #disability-concession
- #breach-of-order
Key facts
- The claimant provided medical evidence in 2022 and 2023, including GP notes and reports from a counselling psychologist and consultant psychiatrist.
- The respondent did not concede disability until after the claimant disclosed an occupational health report two weeks before a preliminary hearing.
- The claimant forgot about the occupational health report and obtained it when she remembered.
- The tribunal found the late disclosure was not unreasonable and the breach of orders did not warrant a costs award.
- The respondent's application for costs was refused.
Timeline
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Order for medical disclosure
Employment Judge Self ordered the claimant to provide medical evidence by 7 June 2022.
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Claimant provides initial medical evidence
The claimant provided an impact statement and three pages of medical evidence.
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Respondent challenges sufficiency
The respondent wrote to the tribunal stating the evidence was insufficient.
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Preliminary hearing order
Employment Judge Burge ordered the claimant to confirm or provide additional medical evidence by 22 February 2023.
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Claimant provides further evidence
The claimant provided seven medical documents but not GP records.
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Respondent reiterates insufficiency
The respondent wrote again stating the evidence was insufficient and disability was not conceded.
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Claimant discloses occupational health report
Two weeks before the preliminary hearing, the claimant provided an occupational health report from her previous employment.
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Respondent concedes disability and applies for costs
The respondent conceded disability and made a costs application, later quantified at £12,166.53.
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Claimant responds to costs application
The claimant's representatives responded, arguing the medical evidence was sufficient and the costs were disproportionate.
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Judgment on costs
Employment Judge Burge refused the respondent's costs application.
The legal issue
Whether the claimant's late disclosure of an occupational health report constituted unreasonable conduct or a breach of tribunal orders justifying a costs award under Rule 76 of the Employment Tribunal Rules.
The outcome
The tribunal refused the respondent's costs application. The key reasons were:
- The claimant had provided significant medical evidence in response to the orders, including an impact statement and reports from a counselling psychologist and consultant psychiatrist.
- The late disclosure of the occupational health report was not unreasonable; the claimant had forgotten about it and obtained it promptly when she remembered.
- The breach of orders was minor and did not cause serious disruption or prejudice.
- Costs orders are exceptional in employment tribunals, and the circumstances did not justify one.
No compensation was awarded as this was a costs application, not a substantive claim.
Lessons & takeaways
- If you forget to disclose a document, disclose it as soon as you remember and explain the delay to the tribunal.
- Employers should consider whether late disclosure has caused actual prejudice before applying for costs.
- Tribunals are reluctant to award costs unless there is clear unreasonable conduct or serious breach of orders.
- Providing substantial medical evidence early can protect against costs applications for later omissions.
What this case shows
This case highlights the high bar for obtaining a costs order in the Employment Tribunal. The employer, Xace Limited, applied for over £12,000 in costs after the former employee disclosed an occupational health report two weeks before a preliminary hearing, rather than by the earlier deadline. The tribunal rejected the application, finding that the late disclosure was not unreasonable.
What the employer could have done differently
Xace Limited argued that the claimant had breached tribunal orders and acted unreasonably. However, the tribunal noted that the claimant had already provided substantial medical evidence, including reports from a psychologist and psychiatrist. The occupational health report was simply forgotten and disclosed promptly when remembered. The employer could have avoided the costs application by considering whether the late disclosure caused any real prejudice, rather than assuming any breach automatically justified costs.
Why this matters
Costs orders are the exception, not the rule, in employment tribunals. Even where a party fails to comply with an order, the tribunal will consider the nature of the breach, whether it was deliberate, and whether it caused significant disruption. This case serves as a reminder that a minor, unintentional delay in disclosure is unlikely to result in a costs award, especially where the disclosing party has otherwise cooperated and provided relevant evidence.
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