Cost Order Where a Claimant Lies When Giving Evidence

Cost Order Where a Claimant Lies When Giving Evidence

In the Employment Tribunal each party is expected to cover their own legal costs and unlike civil claims in other courts the winning party’s costs are not paid by the losing party.
However the Tribunal does have the power to order one party to pay the costs of the other party if they consider that the party has been pursued maliciously vexatiously or otherwise unreasonably or the party has behaved unreasonably during the Tribunal proceedings.
The case of Kapoor v Governing Body of Barnhill Community School has recently been considered by the Employment Appeals Tribunal (EAT).
Ms Kapoor was an exam invigilator and brought claims for race discrimination victimisation and harassment against his employer. These claims were unsuccessful in the Employment Tribunal. The Tribunal even went as far as to say the evidence given by Ms Kapoor was not worthy of belief it should not have been trusted unless corroborated and that she had even falsified documents.
As a result the Tribunal considered that not telling the truth was automatically unreasonable conduct and made an adverse costs order requiring Ms Kapoor to pay £8900 as a contribution to the costs incurred by the Respondent.
If a Claimant gives false evidence is that automatically unreasonable conduct warranting a costs order?
Ms Kapoor appealed against the costs order and the EAT overturned the Tribunal’s decision. They followed the case of HCA International Ltd v May-Bheemul and stated that the context nature gravity and effect of the lie were relevant to whether or not it constituted unreasonable conduct. The Respondent does not have to show a clear causal link between the lie and the costs incurred. By failing to consider these issues the EAT said the Tribunal had misdirected itself.
There are various reasons why a claim may be unsuccessful and these do not necessarily relate to giving false evidence. The matter was remitted to the same Tribunal for reconsideration.
It is fairly rare for the Tribunal to award costs against a party for their unreasonable behaviour. However Claimants should be aware of this possibility if they pursue claims that they have no real evidence of especially where allegations of discrimination are made.
If you have been subjected to discrimination at work on the grounds of your race sex disability or any other reason or you have any other grievances with your employer please contact the dedicated employment team at Michael Lewin Solicitors who will be happy to discuss your situation with you.
Written by
Anthony Fox

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