No chance of success
Labour & European Law Review Weekly Issue 281 09 August 2012
Tribunals have the power to award costs if it finds that a claim had no reasonable chance of succeeding, among other circumstances. In Boras v Hollyland Pitta Bakery and ors, the Employment Appeal Tribunal (EAT) said that although the Tribunal found that the claimant had not deliberately lied, that did not stop it from concluding that her claim had no reasonable prospect of success.
Ms Boras had brought claims of direct sex discrimination and victimisation against her employers, but the employment Tribunal found that they were all untrue.
Although it concluded that Ms Boras had not deliberately lied it said that her “evidence was, quite simply, unbelievable. It was neither consistent, in itself, nor did it reflect the contents of any of the documentation. For whatever reason, and this is not a matter upon which the Tribunal would care to speculate, the claimant’s perception of reality, sincerely held as it might be, is damaged and, as a result, utterly unreliable”.
It ordered her to pay her employer’s costs, mainly on the basis that her claim was misconceived and had no reasonable prospect of success. As these were in excess of the Tribunal maximum of £10,000, they had to be assessed by the county court.
Basis of appeal
Ms Boras appealed on three grounds:
- The Tribunal had taken several irrelevant factors into account - that she was under medical care and had refused to undergo counselling; and that she had not raised a grievance. Specifically, she argued that her failure to seek medical treatment was a private matter under Article 8 of Schedule 1 to the Human Rights Act 1998 (the right to respect for her private and family life) which should not have been taken into account by the Tribunal when considering a costs order.
- Having found that her evidence was not deliberately untruthful, the Tribunal was wrong in law to find that her claim was misconceived.
- The Tribunal failed to consider the narrow limits imposed on them in terms of awarding costs; failed to take into account their own conclusions as to Ms Boras’ mental health and the fact that it had found she was not a liar; and awarded costs for a period when she was unrepresented and not receiving legal advice.
However, the EAT found against her, saying that the Tribunal was entitled to take into account the state of her mental health and her failure to seek medical help.
It was also entitled to take into account the fact that Ms Boras had not lodged a grievance.
Although Tribunals have the power to deduct up to 25 per cent from a compensation award for failure to lodge a grievance under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, this case related to a wholly different situation and was not therefore relevant.
Although the Tribunal found that she had not deliberately lied, the EAT said that did not stop it from concluding that her claim had no reasonable prospect of success.
It set out three pointers for Tribunals when considering costs awards:
- The fact that a claimant has based their claim on lies does not automatically mean that the proceedings have been conducted unreasonably.
- The fact that the claimant has not lied does not automatically mean that Tribunals cannot find that the proceedings have been brought or conducted unreasonably.
- Tribunals have to look at the whole picture, bearing in mind that costs are rarely awarded.
It therefore dismissed her appeal.
This case illustrates the risk of costs where the evidence of the surrounding circumstances contradicts evidence by a claimant. A belief that something has happened, however sincerely and deeply held, is not enough. This was an extreme case in which the Tribunal found there was no basis for a claim at all. The reference to the failure to pursue a grievance must be seen in that context.