Although an Employment Tribunal (ET) is entitled to express its conclusions in trenchant terms, it must not do so to the extent of appearing to pre-judge issues on costs prior to hearing full argument, the Employment Appeal Tribunal (EAT) has ruled (Oni v NHS Leicester City).
In dismissing a nurse’s claims of constructive unfair dismissal, direct race discrimination and victimisation, the ET had criticised the claimant’s evidence in strong terms, questioned the genuineness of some of her complaints and described the bringing of the claims as unreasonable.
The ET had gone on to order the claimant to pay the very substantial legal costs of the case and to make a finding that she had the means to pay those costs.
In upholding the nurse’s appeal and ruling that the ET should have recused itself from considering costs issues (i.e. let another Tribunal consider that issue) , the EAT has ruled that the nature and extent of the ET’s adverse findings against her in respect of liability gave the appearance of the costs issues having been determined prior to the hearing of argument.
The EAT emphasised that it is in general desirable that the ET which dealt with a liability hearing should also deal with questions of costs. The making of adverse findings against a claimant is also not generally a ground for recusal when it comes to considering costs issues.
However, giving guidance for the future, the EAT ruled that the ET ‘should not express itself in a way which tends to demonstrate that it has already made up its mind, prior to hearing argument, not only on the issues that it had to decide but also on issues which only fall for decision if an application for costs is made.’
The EAT also ruled that the ET should not have ruled that the claimant had the requisite financial resources to pay the very substantial legal costs of the case without giving proper consideration to her plea that she was of limited means.