The claimant brought various discrimination, harassment and whistleblowing claims against the Council, a previous employer from whom she had TUPE transferred and also against a number of individual colleagues. All the respondents had common representation. Following a 20 day hearing, all the claims were dismissed by the Employment Tribunal and the claimant was ordered to pay costs of one third of the respondents' total costs (£260,000, to be assessed), on the basis that the claim was misconceived from the start.
The EAT decided that the costs award, which they took to be £60,000 after assessment, had been correctly made, even though the respondents had not applied for a deposit order and there had been no costs warnings. The EAT accepted that respondents are often put off applying for deposit orders by the further expense involved. Although the respondents had made a substantial offer of settlement (£95,000), this was specifically stated to be for "commercial” reasons and was unsurprising given the costs involved and the prospect at the time of a 20 day hearing. Nor was it wrong in principle to make an award (twice the claimant's pre-dismissal salary) which the claimant could not in her present financial circumstances afford to pay, where the Tribunal had formed the view that she might be able to meet it in due course.
This may be the sort of case picked up by the new tribunal "sift" procedure coming in at the end of next month, depending on how tough a line Employment Judges take in exercising their new powers, particularly where discrimination allegations are made. It is also an example of a case where the Tribunal will be able to do the costs assessment itself, rather than having to send it to the County Court.