The Employment Tribunal (“ET”) made this exceptionally high costs order in the case of Mr C H Tan v Copthorne Hotels Ltd: 2200986/2017. The Claimant brought multiple claims against his employer all of which were dismissed. In light of the Claimant’s conduct in bringing the claims the ET made what is believed to be one of the largest cost orders to date.
Employment Tribunals (“ET”) are unlike the civil courts when it comes to costs. Once a case ends in the ET, the default position is that both parties cover the cost of their own case. Therefore, win or lose, costs are not generally recoverable. That being said, it is possible to make an application for costs in the ET. An application for a costs order or a preparation time order may be made at any time during proceedings and up to 28 days from the date the judgment being sent to the parties. No order will be made unless the paying party has had a reasonable opportunity to make representations in response to that application. If a party intends to make an application for costs it is good practice to put the other side on notice by sending a “costs warning letter” and to serve a draft schedule of costs. However, it is important not to be “oppressive” in making threats in relation to costs, particularly where the other side is unrepresented.
The ET usually looks to award costs where one side has been vexatious, abusive, disruptive, unreasonable or where they have no prospect of success. To put the costs regime into context, between April 2019 and March 2020, 103,984 ET applications were made. Out of the 103,984 applications, costs were awarded in just 177 of them. With the average cost award being £2,500.00.
Facts of the case
The Claimant worked for the Respondent as a Senior Vice President, Global Chief Procurement Officer. After five years in this role, he was made redundant.
The Claimant was upset with the decision to make his role redundant and he issued proceedings for a number of claims including: unfair dismissal, discrimination on the grounds of his age, his race and his sexual orientation, whistleblowing detriment and unlawful deductions from wages.
Throughout his employment, it transpired the Claimant had made many hours of covert recordings of conversations with his colleagues. He had also made a covert recording of a consultation he had with an occupational health doctor. To support his claims in the ET he submitted over 3,000 pages of documents as evidence.
The Respondent was concerned about the Claimant’s conduct from the outset and it made it clear to him that they would make an application for their costs to be paid by him. They also sought, and secured, a deposit order from the ET which required the Claimant to pay a deposit to the ET to enable his claims to proceed.
Despite the Respondent’s warning on costs and the deposit order, the Claimant continued to pursue his claims.
Decision of the ET
The final hearing lasted for nine days and all of the Claimant’s claims were dismissed. The ET stated that “had we not found the dismissal to be fair, we would have found that the claimant would have been dismissed in any event as soon as the respondent found out about the making of his covert recordings. This was duplicitous and undermining of the relationship of trust and confidence between the parties.”
The ET noted the Claimant’s “scattergun approach…making reference to every possible claim he could think of, to strengthen his position within the redundancy exercise.” To say the ET was unimpressed with the Claimant’s actions would be an understatement.
In a separate costs hearing, the ET assessed the Claimant’s costs at an eye watering £432,001.85.
Over the coming months, as the furlough scheme ends, ET claims are expected to increase. Whilst this case is inevitably somewhat of an outlier in terms of the value of the costs order that has been made, it does act as a salutary reminder of the risks associated with bringing unmeritorious claims.