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Costs awarded against Claimant...

Costs awarded against Claimant...

Posted on 19/03/2013 by Phil Hall

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...in the Employment Tribunal due to Misconceived Claim.

 

In Topic v Hollyland Pitta Bakery Ms Topic claimed direct sex discrimination, sexual harassment and victimisation. The Employment Tribunal decided that her complaints were untrue, that her claims had no reasonable prospects of success, and ordered her to pay the Respondent’s costs. Whilst the Tribunal didn’t think the Claimant had intentionally lied, it decided that her perception of reality was “damaged and wholly unreliable”.

It is thought that an underlying medical condition had led the Claimant to believe that the allegations that she brought against her employers were true, however it was found that her beliefs had no basis in reality. It is understood that the Claimant was under a doctors’ care, whilst also self-medicating and refused to take appropriate medical advice when it had been suggested that she undergo counselling. The case also brought to light the fact that the Claimant had made similar allegations of sexual harassment against two of her previous employers.

The Claimant appealed to the Employment Appeal Tribunal. She argued that she actually believed that she had been discriminated against and that giving weight to her mental state infringed her right to privacy under Article 8 of the European Convention of Human Rights. She also argued (in relation to the costs order) that the Tribunal was wrong to take into account the fact that she had failed to raise a grievance (arguing that this was only relevant when considering compensation).

The Employment Appeal Tribunal dismissed the Claimant’s appeal. When considering whether to award costs against her, the Tribunal were entitled to take account of her mental health and the failure to seek medical help. Further, there was no breach of privacy as the Claimant had put the material before the Tribunal herself. Although she had not deliberately lied, this did not prevent the Tribunal finding that her claim had no reasonable prospect of success. The Tribunal were entitled to take into account the fact that she had not raised a grievance as this was not only relevant to the question of compensation.

There are in the judgement of Mummery LJ, with whom Patten LJ and Sir Henry Brook were in agreement, important statements of principle regarding both the approach of an Employments Tribunal to costs applications and to appeals against cost decisions as follows which had to be considered:

“The vital point in exercising discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effect it had.”

It was also specified that in order to determine whether to make a costs order, it must be considered whether or not there was a link between the unreasonable conduct in question and the specific costs which are to be claimed.

Brabners Chaffe Street LLP http://www.brabnerschaffestreet.com/