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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kapoor v The Governing Body of Barnhill Community High School (Practice and Procedure : Striking-out or dismissal) [2013] UKEAT 0352_13_1212 (12 December 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/0352_13_1212.html Cite as: [2013] UKEAT 352_13_1212, [2013] UKEAT 0352_13_1212 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE SINGH
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS M KAPOOR (The Appellant in Person) |
For the Respondent | MS ![]() ![]() ![]() (of ![]() Instructed by: London Borough of Hillingdon Legal Services Civic Centre High Street Uxbridge Middlesex UB8 1UW |
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Tribunal dismissed the Claimant's claim for race discrimination. It then made an award for costs against the Claimant in the sum of £8,900, which represented part of the Respondent's costs. It did so because it considered that the Claimant had put forward false evidence. It therefore concluded that the Claimant had conducted the proceedings unreasonably and said that it was as simple as that.
Held, The Tribunal had misdirected itself in its approach to the exercise of its discretion on costs, because it considered that the simple fact that the Claimant had lied meant that she had conducted the proceedings unreasonably. It should have considered all the circumstances of the case, including the procedural history and the extent to which the Claimant's lies had made a material impact on its actual findings. The case would therefore be remitted to the Employment Tribunal to be reconsidered according to the correct approach in law. It was not necessary in the interests of justice in this case to remit to a differently constituted Tribunal because this Tribunal was already familiar with the evidence which it had heard at a hearing lasting some 5 days.
THE HONOURABLE MR JUSTICE SINGH
Introduction
The facts
The rules on costs
The Employment Tribunal's decision
"We bear in mind in reaching our decision that the claimant has been found in this case, and it really cannot be dressed up, to have presented a case that she has put forward falsely, in other words she has not told the tribunal the truth. Without more, to conduct a case by not telling the truth is to conduct a case unreasonably, it is as simple as that..."
The case law
"...a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the Tribunal to examine the context and to look at the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct."
"39. I begin with some words of caution, first about the citation and value of authorities on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.
40. The actual words of Rule 40 are clear enough to be applied without the need to add layers of interpretation, which may themselves be open to differing interpretations. Unfortunately, the leading judgment in McPherson [McPherson v BNP Paribas (London Branch)] delivered by me has created some confusion in the ET, EAT and in this court. I say 'unfortunately' because it was never my intention to re-write the rule, or to add a gloss to it, either by disregarding questions of causation or by requiring the ET to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as 'nature' 'gravity' and 'effect.' Perhaps I should have said less and simply kept to the actual words of the rule.
41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited…from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances."
Discussion
Furthermore, at the end of paragraph 68 the Tribunal concluded that even if it was wrong about this, the Claimant had not, in respect of any allegation, demonstrated any evidence other than the mere fact of the difference of race to suggest the burden of proof passed to the Respondent in respect of any of the allegations of direct discrimination. Similar points were made in respect of allegation 3.2 at paragraph 69 of the Judgment and allegation 3.3 at paragraph 70.
Conclusion