Tribunal judges have the power and are encouraged to deal robustly with weak and vexatious claims (or indeed defences – sauce for the goose…), and in doing so are likely to be critical of the conduct of the case by the party in question. However, they must take care not to overstep the mark and appear to prejudge other issues – for example an award of costs. In Oni v NHS Leicester, the tribunal dismissed a nurse’s claims of constructive unfair dismissal, race discrimination and victimisation after a long hearing and commented that both the claims and the way in which they had been conducted were unreasonable. In particular they said she was an unreliable witness and her answers to questions were evasive and equivocal. An application was made for costs against her; she argued that the same tribunal should not consider the question of costs, on the ground of bias, but the tribunal declined to step down. The matter went to the Employment Appeal Tribunal who accepted that while there was no actual bias, the views expressed about the case’s weakness meant that there was apparent bias and so costs should be considered by a differently constituted tribunal. While tribunals are entitled to comment on the conduct of claims before them, they should be careful not to go too far and indicate what view they would take on a costs application.
A further point which arose from the case was that when considering costs the tribunal had not taken any account of the claimant’s ability to pay an award of costs. This is a factor which should always be taken into account – and it was suggested that tribunals could usefully direct the use of county court form EX140 to establish the losing party’s financial circumstances.
This case is particularly timely because, taking into account the Government’s proposed reforms, we can expect to see a significant increase in the number of costs awards made, as well as the "weeding out" of unmeritorious claims. There is also the potentially significant matter of tribunal fees and the claimant’s ability to pay. Although detailed regulations are yet to be published, county court form EX140 is a detailed questionnaire concerning an individual’s financial circumstances including employment, property and even ownership of assets such as a microwave oven and mobile phone.
As for fee exemptions, the current rules vary according the area of law. For example in the Court of Protection there is a complete fee exemption for those in receipt of most means-tested benefits or a gross annual income of up to £12,000. There is a sliding scale for income above £12,000 and up to the cut off which is £16,501. For family law cases the limit is £13,000 for a single person and £18,000 for a couple with increased limits according to the number of children up to a maximum £ 24,720 and £29,720 respectively. There is a wider discretion in most of the relevant Regulations which provides that fees can be reduced or waived if it can be shown that requiring payment would cause undue financial hardship. It is reasonable to assume that most claimants in the employment tribunal who have lost their jobs will either be in receipt of means tested benefits or requiring payment of fees when they have lost their jobs would indeed cause undue financial hardship. It will therefore be interesting to see to what extent the impact of the introduction of fees will affect the number of claims commenced. My prediction is that it will be far less than some have suggested.
