Claim withdrawn mid-hearing: costs refused despite unreasonable conduct
An online teacher who withdrew her disability discrimination claim on the second day of the hearing avoided a costs order, even though the tribunal found her conduct unreasonable.
1 min read · Last updated 18 May 2026
Case details
- #disability-discrimination
- #protected-disclosure-detriment
- #withdrawal-of-claim
- #costs-application
- #litigant-in-person
Key facts
- The claimant presented an ET1 on 14 January 2022 claiming disability discrimination and protected disclosure detriment.
- The claimant withdrew her claim on the morning of the second day of the hearing after evidence was completed.
- The respondent applied for costs of £3,864 on the basis of vexatious or unreasonable conduct.
- The claimant was a litigant in person represented by a family friend with tribunal experience.
- The tribunal found the claimant's withdrawal was not vexatious but was unreasonable due to no material change in circumstances.
- The tribunal exercised its discretion to refuse the costs application, considering the claimant's mental health and litigant in person status.
Timeline
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ET1 presented
The claimant presented her claim for disability discrimination and protected disclosure detriment.
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Strike out warning
The tribunal gave the claimant an opportunity to show why the unfair dismissal complaint should not be struck out.
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Unfair dismissal struck out
Employment Judge Sharp struck out the unfair dismissal complaint due to the claimant's failure to respond.
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First day of hearing
The substantive hearing took place by video; evidence was completed on this day.
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Claimant withdrew claim
On the morning of the second day, before submissions, the claimant withdrew her claim, citing hearing evidence, work allocations, and mental health.
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Judgment on withdrawal issued
A judgment recording the withdrawal was issued.
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Costs application
The respondent applied for costs of £3,864 under Rule 76(1)(a) for vexatious/unreasonable conduct.
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Claimant's comments on costs
The claimant sent an email responding to the costs application, arguing her actions were not malicious or unreasonable.
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Costs judgment
Employment Judge Moore refused the costs application, finding the claimant's conduct was unreasonable but exercising discretion against a costs order.
The legal issue
Whether the claimant's withdrawal of her claim after evidence was completed, but before submissions, amounted to vexatious or unreasonable conduct justifying a costs order under Rule 76(1)(a) of the Employment Tribunal Rules.
The outcome
The tribunal refused the respondent's application for costs of £3,864.
- The claimant withdrew her claim on the morning of the second day of the hearing, after all evidence had been heard.
- The tribunal found that the withdrawal was not vexatious, but was unreasonable because there was no material change in circumstances since witness statements were exchanged.
- However, the tribunal exercised its discretion against making a costs order, considering the claimant's mental health difficulties and her status as a litigant in person.
Lessons & takeaways
- Withdrawing a claim late in proceedings can be seen as unreasonable if there is no new reason for doing so, but the tribunal may still refuse costs if you have a vulnerable personal situation.
- If you are a litigant in person, the tribunal may take your lack of legal knowledge into account when deciding whether to award costs against you.
- Employers should be aware that even a successful costs application may be refused if the claimant has mental health issues or other vulnerabilities.
- Consider settling early to avoid the risk of a costs application, but be aware that the tribunal has discretion to refuse costs even if the other side's conduct was unreasonable.
When a late withdrawal can (and can't) lead to costs
This case shows the fine line between unreasonable conduct and a costs order. The claimant, an online teacher working 7.5 hours per week, brought claims of disability discrimination and protected disclosure detriment against Horizon Care and Education Group Limited. After the first day of the hearing, when all evidence had been heard, she withdrew her claim. The employer argued that she had acted vexatiously or unreasonably by continuing with the case after receiving the employer's witness statements, which contained the same information that led her to withdraw.
The tribunal agreed that the withdrawal was unreasonable — there was no material change in circumstances between the exchange of witness statements and the hearing. However, it refused to award costs. The key factors were the claimant's mental health (she was disabled by anxiety) and the fact that she was a litigant in person represented only by a family friend. The tribunal also noted that the claimant had not acted maliciously.
What the employer could have done differently
The employer had offered to settle the costs claim for £2,000 before making the formal application, but the claimant did not respond. While the employer's application was technically valid, the tribunal's discretion meant that even unreasonable conduct does not automatically lead to a costs order. Employers in similar situations should be aware that a claimant's personal circumstances — especially mental health — can weigh heavily against costs, even when the conduct is found to be unreasonable.
Why this matters for similar claims
For claimants, this case is a reminder that withdrawing late can be criticised, but it does not guarantee a costs penalty, particularly if you have vulnerabilities. For employers, it highlights that costs applications are not always successful, even when the tribunal finds the other side acted unreasonably. The decision underscores the tribunal's broad discretion and its willingness to consider the human impact of a costs order.
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