Although there is provision in the Employment Tribunal rules for a claimant to be ordered to pay a respondent’s legal expenses, it is extremely rare for a cost order to be made. The Rules set out that an employment tribunal has the discretion to make a costs order where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of proceedings or the way that the proceedings have been conducted.
Liddington v 2gether NHS Foundation is a recent example of a case in which such an order was made. Ms Liddington was pursuing a whistleblowing claim against her employer on the basis that she had been subjected to detriment after making a safeguarding disclosure. She was not represented and could not recall the exact dates on which some of the incidents she complained about had occurred. Unfortunately, dates were crucial to her case since she was required to demonstrate that the detriment occurred after she made the disclosure.
Over the course of several case management hearings and in correspondence three employment judges repeatedly explained to the claimant that she needed to better particularise her claims. However, she was unable to do so. The tribunal accepted that she was not to be held to the same standard as a qualified lawyer; however her claim could not proceed on the basis of the pleadings she put forward and she had not taken steps to rectify this. As a result, the respondent had suffered wasted costs. Interestingly, the tribunal did not find that she was being deliberately obstructive, but her lack of preparation did amount to unreasonable conduct and so a costs order was made.
The case serves as a reminder to claimants that they must clearly and adequately set out their claims or risk expenses being awarded against them. It will also give comfort to employers who often suffer great frustration in the face of unreasonable behaviour.