Today’s case considers a hefty costs order of almost half a million pounds, and raises some important points in relation to employment tribunal rules as well as etiquette.
Mr. Tan was employed by Copthorne Hotels as a Senior Vice President of Procurement. He had been with the company for 5 years, before being made redundant. Enraged by his dismissal, he brought a plethora of claims: unfair dismissal, automatic unfair dismissal, whistleblowing detriment and dismissal, discrimination because of age, race, sex, sexual orientation and harassment and victimisation.
As some of the claims were rather ambitious a number of them were withdrawn before the full hearing, but several remained. At hearing, the tribunal was presented with over 3,000 pages of documentation by Mr. Tan, including transcripts of numerous hours of recordings he had made between himself and other employees. His witness statement was also 61 pages long.
Mr Tan’s claims were dismissed, but more importantly, he was ordered to pay £432,001.85 to his employer to cover their legal costs.
It is important to note that in the employment tribunal, no costs orders are generally made. In other words, the losing side is not ordered to pay the winners’ costs (as they are in a civil court). However, an employment tribunal may order the loser to pay the winners’ costs, if it believes that the loser has behaved in a manner “vexatious, abusive, disruptive or otherwise unreasonable” in either bringing the claim or in their conduct during it.
It is likely that the employment tribunal considered Mr. Tan’s behaviour to be unreasonable, as well as vexatious. This is so for the following reasons:
- He had complained of his colleagues (prior to his redundancy) referring to him as a diva, and held this as being the basis for some of his claims. In fact, he often referred to himself and other colleagues as a diva and therefore could not reasonably take offence to it.
- He had been generally careless throughout proceedings. Firstly, he included within his evidence submitted to the tribunal, information relating to the claims he had withdrawn. It is likely that the tribunal did not appreciate this waste of their time. Secondly, he had to pay a deposit order before his claims could progress (as they were weak), and so this must have alerted him to their slim chance of success.
- The accusations were generally far-fetched and emotive (vexatious), and Mr. Tan had made several demeaning remarks about his colleagues, which were indicative of ill feeling towards them and his company. Accusations must be substantive, not indicative of a personal vendetta.
In coming to any decision about a costs order, employment tribunals generally consider whether the party from whom payment is sought can actually pay the costs; the extent of their unreasonable conduct; and any factors that indicate the other party should be reimbursed. Considering these points: Mr. Tan was on a salary of £160,000 and therefore could afford to pay; he behaved unreasonably and also wasted a lot of the tribunals time; the other party had no choice but to defend the claims and therefore why should they not be reimbursed? All these points apparently factored into the ‘perfect storm’ of a costs order, hence Mr. Tan’s (almost) half a million pound bill.
Tribunals are more likely to make costs claims where the volume of claims and documentation look like a litigation tactic to increase costs rather than a genuine claim. The earlier deposit order meant the employee had fair notice that his claims were weak.