More costs
by Philip
As Sarah’s post yesterday highlighted, gone are the days when a claimant can flout a Tribunal’s order with impunity. Tribunals seem to be flexing their muscles in respect of striking out claims not only because they are weak but also because an order has not been complied with.
Another running theme in Tribunal procedure is the greater use of costs orders. These used to be as common as teeth on a hen, you were more likely to find Elvis in the local chip shop than have a costs order made.
Times are changing and costs orders are more frequently being made. Last week we reported a £60k costs order, this week the EAT have heard a case involving a 10k costs order against a Claimant who had not impressed the Tribunal with the accuracy and honesty of his evidence. The EAT did not interfere with the order.
If the doom mongers are right and recession is just round the corner, those advising employees will be advising against a backdrop of Tribunals being more willing to make costs orders. Those ancient enough to remember the last recession will remember that mass redundancies were the norm. ITV news even had a weekly slot at the end of the news showing how many mass redundancies had been declared that week.
With mass redundancies came multiple Tribunal claims from those dismissed as redundant. Some of the leading case law in redundancy was made during recession - BAE v Green being a good example where the Court of Appeal gave clear guidance of the Tribunal’s role in judging (or not judging) employer’s selection criteria and their application.
Even in 1995 most of my employer case load was made up of Tribunal claims from redundant employees. The question is now that the law on selection criteria and their application is more settled, will employees in mass redundancy situation still bring claims if they know that a misconceived claim could swallow up some or all of their redundancy payment in a costs order?
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