Employment Tribunal - costs...HELP

Gunther121

Dear all,
I was dismissed from my job and believe that I was discriminated against. I don't want to go into details here. I have raised the case to tribunal and am waiting to hear whether a pre hearing will be called.
In Respondent's response it says that they believe my claim is without merit. I can see that they may wish at some point to seek costs if I loose of withdraw the case (I don't have any intention to do this as it stands at present). I believe I have an entirely reasonable claim but there is always that nagging doubt which lawyers dwell on that a judge will look at the case and decide it is without merit - whch worries me. I need to know....
1. If I withdraw/settle AT THIS STAGE before any pre-hearing can costs be awarded against me? The Respondent has used a solicitor to write their ET3 response and no hearings have yet been held and may move to recover costs if I withdraw.
2. If my case is struck out AT THIS STAGE (before pre hearing or hearing) by the judge, can costs be awarded against me even though no pre hearing/hearing has been held?
Thank, Gunts

SarEl

No in both cases. In the early stages of a claim a tribunal will not award costs unless a judge has given you fair warning that you stand at such risk. At any stage, tribunals rarely award costs, and if they might be inclined to (whether or not the respondant has yet asked for costs) then the judge will drop you a hint so heavy that a mallet couldn't do a better job of it! So provided you are listening to what a judge is telling you and not ignoring the heavy hints that might include, the risk is very low.

Gunther121

Thanks Sar,
Is this for certain? Even if for some reason they think the claim is considered to be without merit?
Would be interested to hear from anyone who has experience of a similar case.

Thank you very much Sar

Jarndyce

Gunther121 wrote: »

Thanks Sar,
Is this for certain? Even if for some reason they think the claim is considered to be without merit?
Would be interested to hear from anyone who has experience of a similar case.

Thank you very much Sar

Anyone with experience of a similar case will not be able to give you any better advice - they will only have experience of their own case, as opposed to the many years of experience of Tribunals that SarEl has.

And SarEl is correct - costs are only ever awarded against parties who pursue frivolous, vexatious or merit-less claims despite heavy hints that they should not do so. If your case has any merit at all, then you don't need to worry about costs. It is quite often a tactic that employers will use against claimants - especially unrepresented ones - to scare them into withdawal. You should hold firm, at least until any pre-hearing review that will give you a clearer idea as to whether a judge thinks your case has any merit. Alternatively, seek a free session with an employment lawyer and talk it through.

Having said all that, I am always very sceptical about sex discrimination cases brought by men - I have rarely seen any with any merit. I would urge you to get a legal opinion before proceeding.

SarEl

Yes I agree. The only cases in which I have seen costs awarded by a tribunal against a claimant have been were the claimant refused to hear the heavy hints. It is always unrepresented clients who are at risk - whilst having a lawyer makes no difference at all in this matter, the fact is that few lawyers would take a case with no merit, and if the judge drops them heavy hints they will always use a brick to get through to their client. It's the sort of " The tribunal is going to award costs against you if you proceed and if you do you will be doing it on your own" conversation that a judge cannot do! It tends to make more of an impression. The risk to unrepresented clients is that they become so invested in their own version of events that they do not hear what is being said. I do recall a case on a forum (not this one) a few years ago where I and others told someone over and over (and over months!) not to proceed because we could see that the case had no merit and that the judge was telling them this - but the poster could not see it because they had their own version of events and their "rightness" so stuck in their head that they did not believe anything to the contrary. Even after the case, lossing, and having costs awarded against them, they went on and on about how the tribunal was wrong!

grahamohanlon

You've got some excellent advice on the preceding posts.
It is important to recognise the individuality of cases, so someone else's experience will have aspects that are unique to their circumstances so:

1. have your cases assessed from the point of merit (ACAS helpline may be useful, you should have been notified of their availability upon receipt of the ET3).
2. On discrimination claims, it must have been Unlawful discrimination - being treated differently, may be a percetion you hold, but not in itself be unlawful.
3.As to costs, as pointed out already - it is a lay court and costs will never be an issue without prior notice so you can make an informed choice.
4. Legal representatives for the Respondent will, as you can imagine, deny vehmently any culpability or wrong doing on the part pof their client (your ex-employer) That's what they are getting paid for.
5. Very often there is advice available from local CABs or Employment Right Voluntary Groups in your area. Just be very open and honest with the facts.
6. Tribunals don't look at whether or not an employer has acted nicely, just whether it has acted lawfully - that makes it very "cut & dried"
7. Don't be put off by the claims/counter-claims of the Respondent or how they are put - if you are in the right, this should come out at the ET.
Good luck with it.

Gunther121

Thanks all, I am very lucky to have good advice. I really do appreciate it. I am very relieved to hear that, at this stage, no costs could be demanded or awarded, regardless of whether the case is withdrawn before pre-hearing or struck out on grounds of being without merit.

I did however hear in one example that costs were awarded (Yerakavla vs Barnsley MBC - google "cost awards disability" and it is in the top link) when the appelant withdrew the case during the pre-hearing phase and got major league whacked for costs so I am still a little concerned.

The Respondent may of course use bully tactics, but I will stand firm as suggested. I will also speak with ACAS regarding the merits of the case.

Thanks so much all!

Jarndyce

Gunther121 wrote: »

Thanks all, I am very lucky to have good advice. I really do appreciate it. I am very relieved to hear that, at this stage, no costs could be demanded or awarded, regardless of whether the case is withdrawn before pre-hearing or struck out on grounds of being without merit.

I did however hear in one example that costs were awarded (Yerakavla vs Barnsley MBC - google "cost awards disability" and it is in the top link) when the appelant withdrew the case during the pre-hearing phase and got major league whacked for costs so I am still a little concerned.

The Respondent may of course use bully tactics, but I will stand firm as suggested. I will also speak with ACAS regarding the merits of the case.

Thanks so much all!

Have you actually read that case?

a) costs were awarded by the ET because the claimant lied, twice, during the PHR and
b) despite that, the EAT set the costs order aside!

SarEl

Yes I agree - I have to assume that you are planning to tell the truth. There is a difference between a "mistaken case" and "lying through one's teeth" - if you are doing the latter then yes, costs can be awarded at any stage. But you have to be caught lying. That is "vexatious litigation" rather than mistaken litigation.

Gunther121

Thanks,
Yes not an ounce of lying from my side - all 100% genuine. From what I have been reading it seems as though it is almost common pratice that the Respondent's lawyers will push for a PHR and claim conduct of the Appelant is vexatious.

Thanks again!

ILW

Gunther121 wrote: »

Thanks,
Yes not an ounce of lying from my side - all 100% genuine. From what I have been reading it seems as though it is almost common pratice that the Respondent's lawyers will push for a PHR and claim conduct of the Appelant is vexatious.

Thanks again!

Have you taken advice as to whether your case has merit, or is it just your opinion at this stage?