Member Article

As the economic outlook continues to look gloomy we are noticing a considerable increase in employment litigation work - this doesn't just point towards more people being dismissed (although this is certainly a factor) but also that as money gets tighter individuals feel they have nothing to lose and everything to gain by bringing claims. For employers this is obviously a headache. We look at some of the tactics which can be used to fight against nuisance claims

If we win at an employment tribunal, does the claimant have to pay our legal fees?
No. An employment tribunal is not like the civil courts where the loser bears the winner's costs. At tribunal the general principle is that each side bears their own costs.

Are there any circumstances where we can get a claimant to contribute to our costs?
Employment tribunals can award costs up to £10,000 against a party ("the paying party") at the request of the other party if the paying party has either in bringing or in conducting the proceedings acted:

• vexatiously, or
• abusively, or
• disruptively; or
• otherwise unreasonably, or
• the bringing or conducting of the proceedings by the paying party has been misconceived".

We recently obtained costs of £750 on behalf of a client who was defending a sex discrimination claim that was withdrawn by the claimant the night before the hearing.

Whilst £750 was not a lot for our client in proportion to the costs incurred it would have made a big difference to the claimant and should hopefully make her think twice about doing the same thing again to another employer.

However, persuading a tribunal to award costs against a claimant is not easy. In another recent case, the EAT overturned a costs order made by a tribunal and stated that costs should not be awarded for a withdrawal alone, more would be required.

Can we apply for costs if we use our in-house team to run the claim?
No. Costs applications can only be made by parties who are paying a legal representative to represent them. If you run the case yourself, or via in-house legal counsel, you won't be able to obtain costs but you may be able to obtain a preparation time order for the time you have spent in preparing for the tribunal. However, preparation time costs are limited to £27 per hour and a maximum of £10,000.

Is there anything we can do to discourage an employee from bringing a weak claim?
Yes. You can ask the tribunal to make an order requiring the claimant to pay a deposit, up to a maximum of £500, in order to proceed with their claim. This can be a useful way to put pressure on a claimant to withdraw their claim if it is in the early stages and you don't think it has much prospect of success. Before making such an order the tribunal must consider the claimant's ability to pay a deposit.

Just because a tribunal orders a deposit to be paid this does not mean that the claimant will necessarily be unsuccessful, but it is a strong indication and should help you apply pressure accordingly.

Can we check whether an employee of ours or a prospective employee has previously brought employment tribunal proceedings against another employer?
If you suspect you have a serial claimant but they have either withdrawn or settled their previous claims before a hearing you will not be able to obtain confirmation of your suspicion by consulting a central register. Whilst employment tribunals are public proceedings, there is no public record of the names of the parties at present - see below for more.

However, if you know the names of the parties, it is possible to make a request to Bury St Edmunds Employment Tribunal to request a copy of any judgment issued as a result of the case and, on receipt of £10, this will be sent to you.
If you do find out that an individual has previously brought a claim such as discrimination you should proceed with caution. If you were to then treat the potential employee less favourably (e.g. you decide not to employ them solely because they have previously brought a claim), this will amount to victimisation. If the potential employee finds out about this, they can then bring a claim against you!

I thought that respondent's names were now going to be published?
From 1965 to 2001 the Register of Employment Tribunal Applications routinely published parties' names and addresses. However, a decision was taken to stop publishing. As you will have seen from our October WortHReading, following a request made under the Freedom of Information Act, the Information Commissioner's Office has ordered the Department for Business Enterprise and Regulatory Reform (DBERR) to disclose the names and addresses of respondents in employment tribunal claims made since October 2004. Whilst this doesn't mean that there will necessarily be a new official register of respondents it does pave the way towards that position but, somewhat unfairly (respondent may feel) details of claimants will not be published.

What do we do if we believe that the claimant is a vexatious litigant and/or their claim has no merit?
You may wish to ask the tribunal to order the claimant to pay a deposit. You can also apply to the employment tribunal for a "strike out" of the claim. However, the threshold for such an order is high and it is unlikely that a strike out application will succeed if there are any possible issues that need to be explored by the tribunal.

In some very extreme cases the Attorney General or the Lord Advocate may make an application for a restriction of proceedings order against a particular individual. A restriction of proceedings order will mean that an individual will not be able to bring any proceedings without the leave of the Appeal Tribunal beforehand. Previous cases have emphasized the need for multiple, habitual and persistent claims arising out of the same or similar facts and causes of action before such an order will be made. Hence, such orders are very limited and depend on the particular circumstances of the case.

 

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