Whichever type of claim is brought in whatever type of litigation process, there is always a temptation for parties to present false evidence to support their case. This is not an advisable tactic as one employment tribunal claimant nearly found to her cost in Kapoor v The Governing Body of Barnhill Community High School .
The main point of legal interest was that the claimant had the cost order made against her in the employment tribunal overturned on appeal. The takeaway point for litigating parties should be that presenting false evidence is not worth the risk.
Employment Tribunal Cost Orders
Employment tribunals are unusual in the way costs are dealt with compared to other types of legal proceedings. In normal litigation proceedings there is a general rule that the loser pays the winner’s costs. In the employment tribunal system this has not traditionally been the case; the employment tribunal has always had broad discretion in relation to costs awards but parties have normally borne their own costs.
In the past this has meant that claimant employees could bring cases against former employers without the risk of being saddled with huge expenses. Although certain fees have been introduced recently, the general principle remains the same.
An exception to this approach is where the claim has been misconceived or the claimant has according to The Employment Tribunal Regulations, “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”.
Kapoor Claim Conducted ‘Unreasonably’
In the Kapoor case the claimant had brought a claim for racial discrimination, victimisation and harassment against her employer. The employment tribunal dismissed these claims and made an award of costs against the claimant in the sum of £8,900. In its reasoning the tribunal stated:
"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..."
On appeal the Employment Appeal Tribunal (EAT) held that the employment tribunal had misdirected itself in the way it had exercised its discretion in relation to costs. The tribunal should not have considered the presentation of false evidence in isolation to the rest of the case but should have considered all the circumstances of the case.
The claimant was fortunate in this case to have had her appeal against the cost order allowed but this really came down to technical legal reasoning. Despite the outcome in this unusual case, parties to legal proceedings are ill advised to present false evidence.