Background:

The claimant brought a claim alleging unfair dismissal. The dismissal surrounded the livestreaming from an Orange Hall in which there were chants of a sectarian nature.  These videos gained media attention with the claimant being disciplined and dismissed by the respondent.  The claim was dismissed by the Tribunal and the respondent brought an application for a Costs Order.

Outcome:

The Tribunal had to apply Rule 73 of the Industrial Tribunal Rules. This states:

1. A tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— 
   (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or
   (b) all or part of any claim or response had no reasonable prospect of success.

The Tribunal held that Rule 73(1)(b) was triggered as there was no reasonable prospect of success at any stage and this was clear from a press statement issued on behalf of the claimant apologising for the behaviour well before the case had been heard. It was then whether the Tribunal would exercise its discretion to award costs.

The claimant’s representative, who later came off record, submitted that the respondent could not avail of a costs application because they did not apply for a Deposit order. The Tribunal stated that it is a factor, but it is not fatal to a costs application.

The Tribunal noted the serious circumstances of the case and the implications they could have for the respondent.  The respondent had suffered significant reputational damage and the publicity surrounding the Tribunal hearing had the potential for increasing such damage. As a result, it was held that it was reasonable for the respondent to instruct solicitors and senior counsel to represent its interests.  An award of £10,000 was made with the Tribunal noting that the actual costs to the respondent far exceed that amount.

Practical Guidance for Employers:

The cost of defending a Tribunal action is one of those factors that has to be considered in terms of the steps to take both before and during any hearing.  This may also include the idea of settling the case due to the financial implications rather than purely looking at it from a justice perspective.   This case provides some useful guidance on issuing a costs order with the Tribunal asking whether it was reasonable for the respondent to instruct solicitors and senior counsel.  To this end, issues such as potential reputational damage had to be taken into account in deciding that a costs award could be made.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/