So here is Friday’s teaser – let us suppose that an Employment Tribunal has just decided that you have been sexually harassed by your former boss, that he was fixated by your breasts, habitually stared at them and frequently addressed them while in conversation with you. He has also touched you, uninvited and unreciprocated, on bottom and thigh. Unpleasant, not to mention unlawful, and unquestionably deserving of some compensation for injury to feelings.
However, let us also suppose that the Tribunal concluded at the same time that you had invented further and more serious allegations against your boss, that he had promised you promotion if you slept with him, for example, and that he had propositioned you and a colleague “for a threesome”. These were not findings that his interpretation of certain facts was preferred over yours, or that you had exaggerated a little in the heat and stress of Tribunal proceedings, or that you had made a mistake, but that you and a colleague had deliberately and maliciously conspired to present what you knew to be false evidence to the Tribunal by way of retaliation against him.
So no-one comes out of this with any credit. That takes us to the question of what compensation you should receive for the harassment you suffered and of how far that money should be affected by the findings against you. “Women win big pay out over sex pest boss” blares the front page of yesterday’s Evening Standardhttp://www.standard.co.uk, but is that right?
A range of options will present themselves to the Tribunal when it reconvenes in September to consider your remedy:
- your lies do not affect the level of injury to feelings which you suffered and so your compensation should not be affected;
- hearing and disposing of those lies in the Tribunal took up x hours and so incurred £y of cost for your former employer. Therefore you should receive unreduced injury to feelings compensation but also get a costs award against you for the time wasted. It sounds counter-intuitive at first blush, but there is no legal reason why you should not both win part of your claim and be found to have conducted another part vexatiously or unreasonably at the same time;
- the Tribunal could reflect its disapproval indirectly, making a broadly unappealable finding that your lies require a degree of scepticism to be applied to your evidence about the extent of your upset, and so setting the compensation at a lower level than it would otherwise have done;
- or the Nuclear Option. The Tribunal could make a stand for the necessity of respect for the judicial system, and decide that you should not only not benefit from lies told to a Tribunal, but should be actively penalised for them. In circumstances where your untruths have been found not to be trivial exaggerations or hyperbole but an active conspiracy to mislead, would it be within the Tribunal’s power to award no compensation for injury to feelings, even where some such injury had undoubtedly been caused? No doubt your boss would favour this as some small recompense for the damage which your untrue allegations had caused him. However, even if it is technically within the Tribunal’s power (which is far from certain) it seems very unlikely as an outcome. Your boss had done himself quite sufficient damage by the things he did do, thanks very much, and public policy dictates that harassers should not escape scot-free even if the harassee has been less than honest.
Ultimately I go for (iii) – this would be a demonstrable poke in the eye all round and the least challengeable at law. No disrespect to you and your genuine upset, of course, but in the end you should not have lied to the Tribunal.