The claimant was employed by the respondent as a domiciliary care assistant. Her contract of employment required her to give four weeks’ notice but she left without giving any and claimed for unpaid holiday and sick pay. She also claimed that she was not provided with written terms and conditions of employment. The respondent sought compensation for breach of contract and the tribunal office notified both parties that this was being treated as a ‘counterclaim’. In the

In the interim the claimant’s representative wrote to the respondent acknowledging payment of the holiday and sick pay and was prepared to accept the payment made in full and final settlement of the claim subject to the counterclaim being withdrawn. The respondent indicated a willingness to pursue the counterclaim and contended that the claimant had received a contract and her failure to give notice caused significant staffing problems. No witnesses were called to substantiate the counterclaim and the respondent relied entirely on the documents contained in the hearing bundle. The tribunal ruled in favour of the claimant in relation to all remaining heads of claim, but most noteworthy was the award of costs against the respondent to the value of £2,006.40 for what was deemed ‘unreasonable behaviour’.

Practical Lessons

The tribunal made clear that is considered the respondent’s behaviour to be “unreasonable rather than vexatious”. Five separate reasons were given for this conclusion but the tribunal referred to the ‘without prejudice’ offer to settle the proceedings months before the hearing which it considered to be reasonable and ought to have been accepted in what was a modest case. Added to this, the counterclaim pursued by the respondent really was ill-conceived which was evidenced by a failure to call any live witnesses at hearing to substantiate it. The tribunal took a very dim view of such conduct and pointed to two failed adjournment applications during the course of the hearing when the respondent sought to allow witnesses to be called. The tribunal did note that the claimant had effectively left the respondent “in the lurch” by failing to work her notice but felt that the respondent had overstated any potential basis it had. Counterclaims are, of course, sometimes appropriate but this case demonstrates how a poorly thought out

The tribunal took a very dim view of such conduct and pointed to two failed adjournment applications during the course of the hearing when the respondent sought to allow witnesses to be called. The tribunal did note that the claimant had effectively left the respondent “in the lurch” by failing to work her notice but felt that the respondent had overstated any potential basis it had. Counterclaims are, of course, sometimes appropriate but this case demonstrates how a poorly thought out claim with no supporting evidence can ultimately cost an employer.