Have Judges Had Enough of Whinging Employees?

Possibly!!

The longstanding view among employment lawyers has been that employees will not be required to pay their employer's legal costs, even if they lose an employment tribunal claim. This, coupled with the fact that employees can bring tribunal cases without paying a court fee, means there may appear to be little financial risk or downside to bringing a claim even where it has little prospect of success.

However, some recent decisions have challenged this view, and perhaps suggests a greater willingness by employment tribunals to penalise “bad behaviour” or vexatious claims by employees. From decisions awarding significant costs against claimants to the resurgence of discussions around tribunal fees, there are signs that the limits of the costs protection available to claimants are being tested.

In Cairns v. The Wellness Zone, the Employment Tribunal found the claimant employee had been evasive in answering questions, had given evidence riddled with exaggeration and hyperbole, and had thereby sought to distract or mislead the tribunal beyond the level that could be explained by mere mistake or differences of perspective. When turning to the question of costs, the tribunal took this conduct into account and ordered the employee to contribute £20,000 towards the employer's legal costs.

In Ombooba v. Michael Garrett Associates Ltd (t/a Global Artists), the claimant actor brought religious discrimination claims against the theatre and her agency after she was fired from her role as Celie in The Color Purple, despite admitting that she would have resigned from the role in any event. The admission that she would have resigned meant that her claims were found to have had no reasonable prospect of success, entitling the tribunal to make a costs award against her. Interestingly, in deciding whether the employee had the means to pay the legal fees ordered, the tribunal took into account the means of the religious organisations that had supported her claim – a point that may be of interest where claims are supported or funded by third parties.

These decisions reflect a broader frustration with claims lacking merit putting pressure on an already overburdened tribunal system. While the principle of access to justice is fundamental, it should not serve as a shield for individuals pursuing baseless grievances at the expense of their former employers, the tax-payer and those with genuine complaints who face long delays in achieving justice.

It is in this context that the prospect of tribunal fees, once thought to be a thing of the past, has resurfaced. Proposals to reintroduce tribunal fees have reignited debates about the balance between access to justice and the discouragement of frivolous claims. Supporters of the proposal say that the modest fees could act as a deterrent to entirely unfounded complaints, while ensuring that those with genuine grievances are not “priced out” of seeking redress.

Any such fee, however, will inevitably raise concerns about disproportionately deterring low-income claimants, and may therefore have a chilling effect on those who already have the greatest difficulty accessing justice. There is a clear balance to be struck in ensuring that those who have been wronged can still access justice, without the tribunals becoming overburdened with ultimately frivolous claims.

In all other forms of litigation, the risk of being responsible for some or all of the opponents’ costs is a powerful incentive towards settlement, with the result that the vast majority of commercial disputes do settle without recourse to the courts. While we don’t think there is any justification for adopting the full “loser pays” rule in an employment context (there is still an inherent imbalance between employer and employee which must be taken into account), it is possible that a greater judicial willingness to use the tools already at their disposal, coupled with appropriate warnings from employment lawyers that cost orders are possible, will help more cases settle and enable more people to achieve justice more quickly and at lower cost.

So, perhaps employment tribunals are becoming less tolerant of claims and conduct that fall outside the spirit of the system.