Have Judges Had Enough of Whinging Employees?

Last Updated: March 28th, 2024


The belief among employment lawyers has always been that employees will never be asked to pay the legal costs of their employers, even if they lose at tribunal. This, coupled with the fact that employees can bring tribunal cases for free, means there is no risk and no downside to their bringing a case, even one that has no realistic prospect of success.

However, some recent decisions have challenged this view, and perhaps suggests a shift in judicial attitudes towards “bad behaviour” or vexatious claims by employees. From landmark decisions awarding legal costs against claimants to the resurgence of discussions around tribunal fees, it seems that judges are sending a clear message: Employees will no longer be afforded carte blanche to bring frivolous complaints at the expense of their employers and the taxpayer.

In Cairns v. The Wellness Zone, employment Judges 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 judges pointed to all of this to order that the employee should contribute £20,000 to the employer’s legal costs (the maximum that may be awarded without a detailed assessment of 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 had no prospect of success, entitling the judge 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 – wealthy backers of claims take note.

These decisions reflect a broader frustration with meritless claims putting pressure on an already overburdened tribunal system. While the principle of access to justice is sacrosanct, 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. The recent proposal and consultation for the reintroduction of tribunal fees for claimants has reignited debate about the balance between access to justice and the discouragement of frivolous claims. Supporters of the proposal say that the modest fees (the proposal is for fees of around £55 per claim) can act as a deterrent against entirely unfounded complaints, while ensuring that those with genuine grievances are not “priced out” of seeking redress.

Any such fee, however, will inevitably disproportionately deter low-income claimants, and may therefore have a chilling effect on those who already have the greatest difficulty accessing justice. There is a clearly balance to be struck in ensuring that those who have been wronged can still access justice, without the tribunals becoming overworked 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 maybe they have had enough of whinging Employees.

Alex Kennedy

I know that when the noise dies down there is a solution to be found. I set about that task as quickly as possible.

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