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Two recent cases on how Employment Tribunals should handle the inappropriate conduct of proceedings by claimants have shed some useful light on their more punitive powers. Both decisions made clear that the ET is far more interested in getting to a fair trial of the issue despite such conduct than in thumping claimants because of it, but equally, that there are limits.
First up, the mysterious Z v Q and others, on which the EAT ruled earlier this week. Mr Z brought a range of claims against his employer and a number of its employees, including Ms Q. They included allegations that she had sexually harassed and assaulted him. On the back of those complaints, both he and she were granted anonymity orders by the Employment Tribunal, Z for life and Q until the publication of the ET’s liability judgement. The thinking behind that difference in treatment is that the victim should be better protected than the perpetrator – if Ms Q did indeed sexually assault Z, then she should have to live with the reporting of that like any other person “convicted” of misconduct. If she did not, then the fond but arguably misplaced view of the ET is that publication of her “acquittal” is vindication enough. Unfortunately this ignores the fact that anyone then googling Ms Q’s name for basically the rest of time is going to find reams of salacious coverage of the assault allegations with potentially little or nothing referring to the non-news of their being dismissed. The UK judiciary’s view has long been that the population is easily able to distinguish between reported allegation and found fact, a proposition for which, with due respect, there is no evidence at all.
His identity thus protected, Z pushed off to a week-long ET hearing in October 2021. The EAT described the judgement in restrained terms as “not a good outcome for the claimant“, but the reality was more brutal. All Z’s claims were dismissed, the ET described him as “a witness contemptuous of his duty to tell the truth and unworthy of belief” and he went down for costs of £20,000 on the grounds of that and other unreasonable conduct of the proceedings.
Suitably buoyed, the employer applied for Z’s anonymity order to be revoked so that his dishonesty could be exposed. The Tribunal agreed that there was some legitimate public interest in knowing about that and so allowed that application on the basis that the necessary foundation of the original anonymity order (that Z was relying on sincere allegations advanced in good faith) had been “exploded“, and that the original application for it had therefore been equally dishonest.
Z appealed immediately against both that and the costs order, which didn’t go much better. The EAT had no difficulty in finding that his “beneath contempt” behaviour in concocting his assault allegations against Ms Q represented a material change in circumstances justifying the revisiting of the original anonymity order. As to costs, yes, the figure was high relative to Z’s declared means, but if he wanted time to pay then he could raise that with the civil courts when the employer came to enforce it.
Sadly, Z seems to have learnt little from his ET experience. He also conducted his appeal so unreasonably that the EAT awarded the employer further costs of over £5,300.
Note 1 – Z’s name will not be published until he runs out of time to take the matter to the Court of Appeal or does so unsuccessfully – now that would be really brave, since there the loser pays the winner’s costs irrespective of whether they behaved unreasonably.
Note 2 – The lifetime anonymity order was not overturned simply because Z lost his harassment claim. There are a number of reasons why that can happen which do not impugn the good faith of the claimant. Instead it was because he lied about it on a sustained basis, even to the extent of lodging a wholly false complaint about Ms Q with the police. As the ET said unimprovably,
“We simply cannot accept that the law is powerless to separate the claimant from a protection to which, as is now apparent, he was never entitled“.
Note 3 – Lying in the ET will almost inevitably count as the unreasonable conduct of proceedings, but it isn’t an automatic pass to a costs award for the employer, least of all of this size. The lie actually has to make a material difference to the costs incurred by the other party. A little exaggeration or hyperbole around the edges of a claim, or a dishonest point which is shot down or withdrawn immediately without much effort or costs incurred simply won’t get you there.
Next post on employee conduct in Tribunal – how vindictive is vindictive enough to get your claim struck out?
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