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Tribunal awards potentially highest ever costs order against Claimant

Senior Associate Solicitor, Jane Sinnamon

The Employment Tribunal (ET) in the case of Mr C H Tan v Copthorne Hotels Ltd ET 2200986/2017 – Costs made an order for a Claimant to repay £432,001.85 to the Respondent in legal costs after rejecting all of the Claimant’s claims in their entirety and because of the duplicitous way the Claimant had acted during their employment and in bringing a claim to the ET.

Background

The Claimant was employed by the Respondent as the Senior Vice President, Procurement. The Claimant was told that he was at risk of redundancy, which was confirmed in a letter to the Claimant, and after a period of consultation, the Respondent confirmed that the Claimant was dismissed by reason of redundancy. The Claimant was given a right of appeal, but on appeal his dismissal was upheld.

The Claimant brought claims for unfair dismissal, automatically unfair dismissal, age discrimination, race discrimination, discrimination because of sexual orientation, victimisation, harassment, whistleblowing detriment and unlawful deduction from wages. It is worth noting that the set of documents for the final hearing ran to over 3,000 pages and that during the Claimant’s employment, he made many hours of covert recordings of conversations with colleagues, which were transcribed and referred to as evidence.

The Law

Unlike in the civil courts, costs do not “follow the event” in employment tribunals. Therefore, if a party is successful in bringing or defending a claim, the tribunal will not necessarily make an order that the unsuccessful party pays their legal costs. ET’s do have the power to make costs orders under The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, however they are the exception, rather than the rule. An ET may make a costs order in relation to:

  • the manner in which the proceedings are conducted;
  • if there are no reasonable prospects of success; or
  • if a party to the proceedings has failed to comply with an order or practice direction.

Decision

The Claimant’s claims of unlawful deduction from wages, age, sex and marriage discrimination and whistleblowing detriment were all withdrawn at a preliminary hearing. No reason was given, however the Tribunal stated that the allegations of whistleblowing were unconvincing, which may go some way to explain why this aspect of the claim was withdrawn.

At the final hearing, the unanimous judgment of the ET was that the whistleblowing claim was dismissed upon withdrawal and that the remaining claims failed and were dismissed. The ET was satisfied that the Claimant’s dismissal was by reason of redundancy, as there had been a proper consultation with the Claimant and a fair procedure was followed. The Tribunal confirmed that had it not found the dismissal to be fair, it would have found the Claimant’s conduct to have eroded any trust and confidence between the Claimant and the Respondent (due to the covert recordings) and had the Respondent had knowledge of this, it would have led to a dismissal in any event.

At a costs hearing, which was heard nearly 2 years after the final hearing, the ET ordered that the Claimant pay £432,001.85 in costs to the Respondent. This included a sum in respect of the Respondent’s costs and interest.

Comment

While such orders are often the ‘exception’ rather than the rule, where there is evidence that may demonstrate any of the above bullet points, parties to a claim can be at risk of a costs order.

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