Contrary to his union’s advice and subsequent advice from two law centres that his claims had no reasonable prospects of success and ignoring costs warnings, Mr Herry bought claims of race and disability discrimination. He had made more than 90 allegations of discrimination and asserted that he was disabled by virtue of his dyslexia and stress.

Mr Herry failed to discharge the burden of proof by demonstrating that his stress and dyslexia had a substantial adverse effect on his ability to carry out day to day activities. Relying on the Judgment in J v DLA Piper, the Employment Judge found that mere unhappiness about the way he had been treated did not satisfy the tests relating to disability in the Equality Act 2010, s.6. It found that there was ‘little or no evidence that his stress had any effect on his ability to carry out normal activities.’ He appealed but his appeal relating to the disability discrimination claim failed.

The tribunal found that Mr Herry had ‘unreasonably commenced and unreasonably pursued’ his claims. Despite his absence from work, the tribunal had no reason to doubt his ability to participate fully in an active working life. Finding that the Respondent’s had conducted their defence in a proportionate and reasonable manner, it awarded the Respondent’s costs of £110,000 payable by Mr Herry.

Mr Herry’s appeal relating to costs was remitted. The tribunal had failed to explain why it considered Mr Herry would have a future earning capacity which was sufficient to pay the whole costs award and it had failed to explain why it had not awarded partial costs or costs up to a cap taking into account his financial circumstances.

The EAT commented that where a party applies for costs and relies on the paying party's future earning capacity, it should confirm its intention to serve a statutory demand in the future with a view to bringing bankruptcy proceedings. 

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