Tribunal litigation is often expensive and so it’s no surprise that employers want to recover the expense by asking for its costs against a losing employee. The problem, though, is that getting a costs award in a tribunal is difficult, especially to get an award which is close to covering the actual costs incurred.
To get a costs award the employer needs to show the employee acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of the proceedings, or a part of them. So what if a claimant gives false evidence? Is that automatically unreasonable conduct warranting a costs award? In Kapoor v Governing Body of Barnhill Community School the Employment Appeal Tribunal (EAT) said ‘no’.
At first the tribunal found that the claimant’s evidence in a race discrimination, victimisation and harassment claim was not worthy of belief and that the claimant had falsified certain documents. The tribunal concluded that not telling the truth was unreasonable conduct, “as simple as that”.The Claimant was ordered to pay £8,900 as a contribution towards the Respondent’s costs.
However, the EAT overturned this decision on appeal by the claimant. The EAT found that the tribunal had misdirected itself in its approach to the question of costs because it considered that the simple fact that the claimant had lied meant that she had conducted the proceedings unreasonably. The tribunal instead should have considered all the circumstances of the case, including the procedural history and the extent to which the claimant’s lies had made a material impact on its actual findings. The EAT remitted the case to the same employment tribunal to reconsider their decision.
Whether conduct during litigation is unreasonable is a matter of fact for the tribunal to determine but the above case suggests a measured approach to costs awards is being taken and thus, the hurdle to jump over to secure a costs award remains high.
Employers will need to factor into the assessment of strategy for any tribunal claim the likelihood of any costs award and also to remember that if the employee succeeds with their case the employee will be likely to recover their issue and hearing fees.
For more information, help or advice please contact Tim Davies on 0191 211 7927.