The Employment Appeal Tribunal has recently held that the claimant in an unfair dismissal and discrimination complaint should pay the other side’s costs, despite her inability to pay. We explain why.
Mrs Chadburn brought unfair dismissal and harassment proceedings against her employer, an NHS Trust. The Employment Tribunal considered that her unfair dismissal claim was reasonably brought. However, it also held that she had fabricated discrimination/harassment complaints.
Employment Tribunals can make awards of costs for up to £20,000 without the need for any detailed assessment of those costs. Cost orders can be awarded where either party has “acted vexatiously, abusively, or disruptively” (Rule 76, Employment Tribunals Rules of Procedure).
Tribunals need only look at the question of costs, and have a discretion as to whether or not they consider question of ability to pay. In this case, the claimant was clearly unable to pay, but the Tribunal held that, because she was only 39, she was likely to be able to pay in future. It also found that her current divorce was relevant, as this might mean that she has access to further funds in the not too distant future.
This case will put further pressure on claimants on the issue of costs, which is often a sore point for them: respondents will often threaten claimants with accusations of unreasonable behaviour in order to put pressure on them to either withdraw proceedings or settle them. Although this was a clear case where evidence was fabricated, behaviour need not be that heinous for a claim to be found to be unreasonably brought.