Tribunal claimants with little prospects of success beware!
Alan Lewis - Employment Lawyer
I help to keep Directors off the tribunal witness stand.
It is well known that an order for one party to pay towards the legal costs of another is rare in the employment tribunal.?Rare, but not unheard of.?
Today there was published online a judgment of the Employment Tribunal where the claimant was ordered to pay ￡20,000 (the maximum that can be awarded) towards the costs incurred by her former employer in defending the claim.?In Ms E Merson v United Lincolnshire Hospitals NHS Trust (case number 260007/2020) Employment Judge Ayre sitting with two lay members on 12 October 2022 concluded that in conducting the proceedings the claimant acted unreasonably and chose to pursue a claim which had no reasonable prospects of success.
The claim consisted of 66 allegations of harassment, some as far back as 2016, but the tribunal upheld none of them. The claimant withdrew four of the allegations during the hearing and during her evidence accepted that a fifth allegation was not one of harassment, but she still refused to withdraw it.
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Allegations were made against 11 named individuals as well as unidentified members of the Trust’s HR team. The judgment on liability recorded that the claimant had exaggerated what were serious allegations of behaviour which, if found to be true, would have amounted to physical assault, but the claimant agreed in cross-examination that they were not true. The claimant had also, according to the tribunal, unreasonably interpreted normal and reasonable steps taken by the Trust as acts of harassment.
It was relevant that the claimant had had advice from her trade union until she was dismissed.?She had also taken legal advice from a solicitor very early on in her claim and again shortly before the final hearing from another solicitor. She had also had from the Trust’s solicitors a costs warning letter stating that the claim had no reasonable prospects of success and that the Trust would be applying for costs if she did not withdraw her claim. ?
Despite the award, the Trust’s legal fees, according to its schedule of costs, exceeded ￡36,000, half of those costs being incurred before the costs warning letter and the other half after it.?