Comments on: Costs in Employment Tribunals

By: Michael Scutt

Michael Scutt — Thu, 22 Apr 2010 21:27:40 +0000

I can’t really comment on this and it wouldn’t be appropriate to do so on here if there is a claim underway at an ET. I don’t particularly agree with you that British law is anti-employer. It may seem that way, but discrimination claims can be very difficult to win for Claimants. The problem for employers is that you normally can’t recover your legal costs (never mind all the management time you lose) from the Claimant even if you win the claim and that is a big drain, especially on small businesses. All I can suggest is that if you haven’t done so you need to take legal advice.

By: Cannot Sat As Well !!

Cannot Sat As Well !! — Thu, 22 Apr 2010 18:27:54 +0000

We are in the same situation as ‘Cannot Say ‘, we are going through the Tribunal process and if found against will be forced to shut down. Briefly: Dismissal of an employeee of 6 weeks resulted in her saying she was dismissed because she was pregnant even though she had not told anyone about the pregnancy !! It is usual for an Employment Tribunal to rule in favour of the Claimant in this scenario, it almost seems pointless attending the Tribunal hearing, we know the results nefore it happens. Why is Britsh Law so anti-employer ??

By: Cannot say on going case

Cannot say on going case — Thu, 04 Feb 2010 21:15:31 +0000

I am a frantic employer facing a vexatious claim, (I would say that wouldn’t I)
It has the potential to ruin our business and destroy 20 years of very hard work along with 120 jobs that have been created as a result of that hard work.
I conducted our response as best I could by myself because of lack of available funds and a fight for life during a recession, however it got beyond me and I had to engage a legal team.

I accept that if the law finds us wanting then the responsibility for the loss of the business lies on my shoulders, but if the claimant fails then they should shoulder the same responsibility and pay costs that I cannot afford to loose.

Pay up to make them go away? not a chance, that is theft!

By: Michael Scutt

Michael Scutt — Wed, 14 Oct 2009 12:15:53 +0000

Dennis

Thanks. I can’t comment on the issues in this case as I’ve not been involved in anyway. As a general point though, an appeal from the ET to the Employment Appeal Tribunal can be made, on a point of law usually, and must be made within 42 days of the written decision from the ET being received by the Claimant. It is possible to challenge the ET’s decision if it was thought the ET was baised or the decision perverse in some way but that is quite a challenge. The Claimant needs to seek specific legal advice on the options open to them.

The Claimant is welcome to contact me directly on 0207 464 8433 or via email at michaelscutt@dalelangley.co.uk

By: Dennis Ward

Dennis Ward — Wed, 14 Oct 2009 10:56:27 +0000

A recent case at the Ashford Tribunal resulted in a unanimous decision in favour of the claimant. the Respondent Company broke all the rules but was only ordered to pay an extra 3 weeks redundancy payment the Claimant was refused anything other than the days travelling costs. What a joke after waiting for 8 months for the case to be heard. Why can the claimant not claim damages for the wrongfull dissmissal? Is there any appeal? any one able to help.

By: michaelscutt

michaelscutt — Tue, 02 Jun 2009 18:10:19 +0000

Agreed. I too don’t know how the loser pays rule arose – the asnwer is no doubt in the depths of history. What we don’t want to see is a huge amount of satellite litigation on the subject of costs as there has been over the years in the civil courts on various issues – such as with CFAs.

By: James Medhurst

James Medhurst — Mon, 01 Jun 2009 22:38:21 +0000

What I would be fascinated to know is how the ‘loser pays costs’ rule in the civil courts arose. I am beginning to wonder if it came from an unreasonableness approach similar to that in the Employment Tribunals because it seems to me that this is where it inevitably leads. I would not necessarily object to this – arguably it could promote access to justice by making no win no fee easier to fund – but what I definitely do not want is a messy and inconsistent fudge between a no costs and a full costs regime. Even worse, I do not want a system where lying claimants pay costs but lying respondents get away scott free.

One final point – because I have seen this a few times – what happens if both parties are lying? If they had to pay each other’s costs, it would not only discourage lying, it would also encourage them to keep costs to a reasonable level!

By: michaelscutt

michaelscutt — Mon, 01 Jun 2009 22:25:02 +0000

Paragraph 25 of the ET’s judgment said;

“We looked at all the surrounding circumstances and the background to this case and preferred Miss Rankin’s evidence over Mrs Mathew’s evidence. If the claimant had been called “a black bitch” she would not have waited for nearly three weeks to raise the issue and done so only because it looked as though she herself might be taken through a disciplinary process. She raised the issue on 6 June 2007 when she was resigning. Such a phrase is so offensive it is incomprehensible that she would not have made her objection much sooner. Mrs Mathew had no explanation for the delay.” (my emphasis)

ETs have the power to impose costs on any party before them; they just that they seem reluctant to use that power. Given your experience would you not welcome that?

By: James Medhurst

James Medhurst — Sun, 31 May 2009 16:18:23 +0000

What the tribunal said was, ‘If the claimant had been called “a black bitch” she would not have waited for nearly three weeks to raise the issue and done so only because it looked as though she herself might be taken through a disciplinary process.’ It made no expicit reference to a ‘cynical lie’ and this was an inference drawn by the EAT.

It is well-known by practioners that, if a tribunal says that a party lied, this is an invitation to appy for costs. However, equally, I have seen many cases where the tribunal will allude to dishonesty but will not spell at out because it has taken the view that it is not serious enough to merit an award of costs. I have noticed that, since this decision, some tribunals now take great pains to emphasise the fact that a claim was brought in good faith because they are afraid of their decision on costs being overturned but this cannot be right. The presumption should be that costs will not be awarded and it is for tribunals to justify any decision to award costs, rather than the other way round.

I have also seen plenty of cases where it is obvious to everyone that one of the parties is lying but nothing is said about it in the judgment. I am all for upholding the importance of the oath but, if this is to be taken seriously, tribunals should be willing to criticise those who abuse it, even where they deserve to win the case for other reasons. However, awarding costs would be inappropriate in these situations. The discretion of tribunals should be unfettered.

By: michaelscutt

michaelscutt — Fri, 29 May 2009 13:29:45 +0000

James

Good to hear from you and thanks for the comment – as you say it is a can of worms about to be opened. The only point I would make in response is that Liverpool ET itself came to the conclusion that the allegation was a “cynical lie”, so they must have had a pretty strong view of the Claimant’s mal fides. In the circumstances I’m not surprised that the EAT took their failure to award costs against the Claimant as being perverse.

Have you had any direct experience of this situation where costs haven’t been awarded?