Richmond v Devon Doctors On Call, EAT, 2 August 2006
Ms Richmond worked as a driver and was dismissed for gross misconduct. She lodged a number of tribunal claims, including unfair dismissal and disability discrimination. There were certain delays in Richmond’s conduct of the proceedings – for instance, a case management discussion was adjourned for her to obtain medical advice, and she also failed to comply with a number of the tribunal directions. Richmond withdrew her disability discrimination claim, and her other claims were dismissed by the tribunal. Devon Doctors On Call (DDC) successfully applied for costs.
Richmond’s case was inherently weak, and the fact the disability claim was never properly pursued – together with the failure to comply with the tribunal’s directions – demonstrated unreasonable conduct.
Although Richmond had obtained some work as a taxi driver, at around £230 a week, she was unemployed at the time of the hearing. Nevertheless, the tribunal ordered her to pay £4,000 towards DDC’s costs. Richmond appealed in relation to the issue of costs only.
The power to make an order for costs can be found in the Employment Tribunals Regulations 2004. These provide that a costs order may be made where the paying party (or their representatives) in bringing or conducting proceedings have acted vexatiously, abusively, disruptively or otherwise unreasonably, or the proceedings were misconceived.
Although the tribunal was not obliged to consider Richmond’s means, the Employment Appeal Tribunal (EAT) held that the tribunal gave insufficient reasons for its decision regarding costs, and it was unclear to what extent it considered Richmond’s means as relevant. It also had not given any adequate explanation as to why it had chosen the figure of £4,000.
The EAT sent the matter back to the original tribunal to determine whether it was appropriate to make a costs order for £4,000 or any other sum.
Despite the power of the employment tribunal to make an award of costs, generally, costs orders remain the exception rather than the rule. The Annual Report of the Employment Tribunals Service for 2005-06 shows that costs awards were made in just 0.5% of cases, with two-thirds of awards being made in favour of respondents. The average award was £1,136.