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Honesty is always the best policy…

Honesty within legal proceedings is often presumed and is the basis upon which evidence is given.  In tribunals, (unlike in the civil courts), costs do not always follow the event, that is to say a tribunal will not always make an order that the unsuccessful party pays their costs.  Instead, a tribunal has the power to use its discretion (within the parameters of the Employment Tribunal Rules) to make orders for costs, which can vary depending on the nature of the proceedings.  One of the reasons for ordering costs will be where one party has acted unreasonably in their conduct of the proceedings.  However, the case below demonstrates that not telling the truth does not always invoke a penalty, at least within a tribunal.

In the case of Kapoor v Governing Body of Barnhill Community School, the Claimant brought claims of race discrimination, victimisation and harassment. The Claimants claims were dismissed and in doing so, the Tribunal found that the Claimant’s evidence to be lacking in that it was not worthy of belief and that she had been found to falsify documents. The Tribunal at first instance were rather scathing (as one might expect!) and equated the Claimant’s not telling the truth as unreasonable conduct.  Accordingly, the Tribunal made an order for the Claimant to contribute towards the Respondent’s costs.

On appeal, the EAT overturned that decision and reiterated the importance of considering the context, nature, gravity and effect of the lie and held that the tribunal had erred in failing to consider these issues. They also found that a claim can be unsuccessful for other reasons and these do not necessarily relate to giving false evidence. The EAT remitted the matter back to the Tribunal for reconsideration.

The View considers that whilst the overarching principles in this case are correct in that the success or lack thereof in a claim does not in of itself depend on the provision of false evidence  (one would hope however that truth is still paramount!), it appears to contradict with the earlier case of Ghosh v Nokia Siemens in which an award for costs was made against a Claimant for unreasonable conduct for making a large number of unsustained allegations of discrimination (although there was no express finding of dishonesty).

 If anything, these cases demonstrate the fact that Employers should never presume that a tribunal will automatically make an award for costs (even if they are successful in defending proceedings and it would appear equitable to do so). Instead it highlights the fact that a tribunal will always exercise their discretion on a case by case basis in these circumstances and that as always, it is generally the case that costs are ‘the exception rather than the rule.’

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