A ‘wasted costs’ order against a 17-year-old’s solicitor fails on lack of evidence
In the case Robinson and Ojo v Hall Gregory Recruitment, the Employment Appeal Tribunal had to decide whether an employment tribunal was wrong to award costs against a 17 year old claimant and her representative when she brought multiple claims against her employer that were not supported by evidence.
Facts
Robinson was employed by recruitment company, Hall Gregory. She became pregnant, but unfortunately suffered a miscarriage two months later. She was dismissed shortly after her return to work. She engaged the services of a solicitor, Ojo, and brought claims for unlawful deductions from wages, six allegations of pregnancy and sex discrimination or harassment, unfair dismissal on the grounds of pregnancy or sex, and unpaid contractual notice. She also claimed to have “lost the pregnancy as a result of the stress she went through in the hands of the respondent.”
Tribunal
None of her claims were upheld. The employment tribunal accepted that she was dismissed, not because of her pregnancy or her sex, but because she was not a hard worker. The tribunal noted that her allegation about the loss of her pregnancy was a serious one for which there was “absolutely no supporting evidence".
The employer applied for an order to cover its wasted costs against Robinson and Ojo, broadly on the basis that she should have abandoned her personal injury claim in the absence of any supporting medical evidence. Robinson did not attend the costs hearing, but a statement signed by her was presented. It was clear that her solicitor had prepared this statement, which was heavily weighted in his favour and to his client’s detriment. The tribunal made costs awards against Robinson and Ojo, both of whom appealed.
EAT
The Employment Appeal Tribunal allowed both appeals and sent the costs applications back to the tribunal for reconsideration. The tribunal had failed to consider whether it was "appropriate" to make a costs order against Robinson, noting in particular her age, her financial means and the tribunal’s finding that she had not been properly advised. In respect of Ojo, the EAT expressed concern that he had not been invited to produce evidence about the advice he had given. In the absence of evidence that Robinson would have abandoned her claim if she had received proper advice, a wasted costs order based on negligent advice could not stand.
Comment
In this case, the tribunal failed when awarding a costs order to give adequate consideration to the claimant’s age, her financial means or its own finding that she had not been properly advised. Although the case was decided under the old tribunal rules, the principles are still relevant. While there is no explicit requirement under the new rules for tribunals to consider whether it is "appropriate" to award costs, tribunals still have the discretion to consider a party's means to pay such an award.
In respect of awards against claimant’s (or respondent’s) representatives, this case makes it clear that negligent advice alone may not be enough to justify a costs order, if it cannot be established that the negligent advice directly caused the other party (in this case, the employer) to incur additional costs.
Costs awards at the employment tribunal continue to be relatively rare, but an employer’s appetite for applying for costs may well be heightened in the face of particularly serious and unfounded allegations. This case serves as a useful reminder that, before making such an application, it is worth bearing in mind the factors that a tribunal will, or at least should, take into account in deciding whether to grant it.
Anna Henry is an associate and Paul Mander a partner at Penningtons Manches
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