21st February, 2024

Costs in the Employment Tribunal... a warning...

It's rare for the Tribunal to make a costs order against a Claimant and even rarer when that Claimant is unrepresented. However, if your claim is wholly without merit and you treat the Tribunal, the witnesses and the lawyers with contempt, then the Tribunal can and will exercise its powers to make an order for costs under rules 75 and 76 of the 2013 Regulations.

David Calvert recently represented the Respondent in the four day case of Stephen Lwanga v Atkinsrealis Ltd (Central London Employment Tribunal). Mr Lwanga had been employed by the Respondents as a management consultant and brought 9 claims for direct race discrimination which the Tribunal eventually dismissed. Throughout the proceedings Mr Lwanga had failed to properly particularise his allegations of race discrimination and indeed his witness statement (which ran to 57 pages) failed to deal with the issue of race discrimination at all. His chosen comparator was described as “no comparator at all” and baseless allegations made during cross examination, ranging from a conspiracy by several of the Respondents’ employees to discriminate against him to a number of documents being doctored by the Respondents where all roundly rejected.

However, it was the Claimant's own bizarre conduct throughout the hearing which brought the most criticism from the Tribunal. The Claimant would sneer and “eyeball” witnesses, turn his back on the judge while the judge was speaking, describe the Tribunal as “moving the goal posts” or being “as clear as mud”, constantly talk over the judge and fail to take his direction, describing witnesses as “putrid” and finally accuse the Respondent's legal team of coaching witnesses. If that wasn’t bad enough when judgment was given, he was quite happy to play solitaire with a pack of cards while sat in front of the judge and wing members.

After judgment David made an application for costs in the sum of £12,500. In assessing the merits of the application (and noting that the Claimant had relatively limited means) the Tribunal remarked that the Claimant's conduct had been the worst that it had ever observed from a party in all their years in sitting as a Tribunal. Even though the Claimant was unemployed and therefore of limited means, his conduct had been so bad that they would not consider his ability to pay under rule 84. They described the proceedings as an enormous waste of time and money and without merit. He was therefore ordered to pay the full amount sought of £12,500.

Read the Employment Tribunal decision here.

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