Discrimination paid off with money to leave job

NAS36609 said:

settlements are encouraged by the Employment Tribunal and if you are awarded less money by the Tribunal in a hearing than you have been offered in settlement then the employer can validly claim their costs against you on grounds that it was unreasonable of you to have not accepted their settlement offer

In all my discussions with ACAS, it was made clear to me that any settlement discussions made through ACAS or otherwise are without prejudice, and therefore cannot even be mentioned in a tribunal, let alone be used to demand that you pay costs.

There has been only one Tribunal case in the UK in which an unrepresented claimant has been required to pay the legal costs of the employer, and that was when she engaged in unreasonable behaviour by not being prepared for hearings or following the judgements, etc.

DragonCat16 said:

There has been only one Tribunal case in the UK in which an unrepresented claimant has been required to pay the legal costs of the employer, and that was when she engaged in unreasonable behaviour by not being prepared for hearings or following the judgements, etc.

Where is that figure from? Anyhow, remember that in relation to most claims that are brought, the employer can never apply for costs as either the claim is settled or withdrawn, meaning that there would never be many costs awards.

I would agree that a Claimant who isn’t legally represented is probably less likely to get costs awarded against them, but I don’t know if Trainspotter is legally represented or not.

In relation to settlements, the Tribunal has previously ruled that certain behaviours from Claimants are unreasonable, and this has led to adverse costs awards in some cases, so it does have to be taken into account.

I tried to find the article again but it has been taken down. I thought it said that it was the only case where an unrepresented claimant was ordered to pay costs, but, given that the article is no longer active, I'm not absolutely certain. It is certainly not very common for costs to be awarded to the respondent, and it is only in the case of a frivolous claim or unreasonable conduct during the proceedings. I don't think it would be considered fair for the claimant to be expected to know beforehand what the outcome of the case would be. If someone could predict something like that, then why do tribunals take so long?

If a claimant has a reasonable claim with sufficient detail and documented evidence, sticks to the deadlines and such, and is asking for a reasonable amount of money that corresponds to the amount they have lost with an additional amount for hurt feelings in the case of discrimination, their conduct cannot be said to be unreasonable, and so should not be ordered to pay costs. In any event, if the claimant wins, they would never be ordered to pay costs, other than something like a photocopying fee for preparing the bundle.

Well make sure that the settlement offers are marked ‘without prejudice’ and not ‘without prejudice save as to costs’ and bear in mind the exceptions to the rule, thus allowing disclosure of without prejudice discussions.

There are numerous cases I could cite, here are just a few:

In Kopel v Safeway Stores Plc, the claimant refused to consider a settlement offer. This act was subsequently deemed to be unreasonable conduct on the grounds that, among other factors, the claimant had not entered into any meaningful settlement negotiations.

In Power v Panasonic (UK) Ltd UKEAT/0439/04, after a seven day hearing, the Claimant’s complaints of direct discrimination, disability discrimination, unfair dismissal and breach of contract were upheld by an Employment Tribunal. The Claimant was awarded compensation including interest of £5,855.11. However, the same Employment Tribunal ordered the Claimant to pay the Respondent's costs of £10,000. Prior to the hearing, the Respondent made an offer of £10,000 to settle the claims. The offer was refused out of hand by the Claimant and without any consideration as to the merits of the claim. Sometime after this, the offer was increased to £25,000. That offer was also rejected out of hand. The EAT upheld the Employment Tribunal's decision to award costs and the Tribunal's findings that the Claimant had failed to enter into meaningful negotiations to settle her claims such that the need for a seven day hearing could have been avoided, and that the Claimant was guilty of unreasonable conduct.

In Hooper v Sherborne School EAT/1375/08, the EAT upheld an Employment Tribunal order for a Claimant to pay £7,000 towards the Respondent's costs which amounted to £25,000. The EAT stated that the Respondent had made an offer of £5,000 to settle the Claimant’s claim at an early stage, and the Claimant's rejection of that offer were factors that the Employment Tribunal was entitled to take into account in awarding costs.

In Vaughan v London Borough of Lewisham and others, the Employment Appeal Tribunal (EAT) approved the employment tribunal decision to require a claimant to pay around £60,000 in costs. This claimant had turned down a £95,000 settlement offer.

The offers in the above cases were not dealt with by the Tribunal.

Yes, I have seen that before. It's a site for employers who have been taken to a tribunal. However, an ACAS representative has assured me that any settlement offers are without prejudice. That means that they are specifically forbidden to be disclosed to the tribunal without the agreement of both parties. I also do not see any examples cited in the above referenced information of a claimant who has had to pay costs after rejecting a reasonable offer. Perhaps those are offers that are dealt with by the tribunal itself, because the tribunal wouldn't have access to the details of any offer otherwise.

Yes, I have seen that before. It's a site for employers who have been taken to a tribunal. However, an ACAS representative has assured me that any settlement offers are without prejudice. That means that they are specifically forbidden to be disclosed to the tribunal without the agreement of both parties. I also do not see any examples cited in the above referenced information of a claimant who has had to pay costs after rejecting a reasonable offer. Perhaps those are offers that are dealt with by the tribunal itself, because the tribunal wouldn't have access to the details of any offer otherwise.

Well make sure that the settlement offers are marked ‘without prejudice’ and not ‘without prejudice save as to costs’ and bear in mind the exceptions to the rule, thus allowing disclosure of without prejudice discussions.

There are numerous cases I could cite, here are just a few:

In Kopel v Safeway Stores Plc, the claimant refused to consider a settlement offer. This act was subsequently deemed to be unreasonable conduct on the grounds that, among other factors, the claimant had not entered into any meaningful settlement negotiations.

In Power v Panasonic (UK) Ltd UKEAT/0439/04, after a seven day hearing, the Claimant’s complaints of direct discrimination, disability discrimination, unfair dismissal and breach of contract were upheld by an Employment Tribunal. The Claimant was awarded compensation including interest of £5,855.11. However, the same Employment Tribunal ordered the Claimant to pay the Respondent's costs of £10,000. Prior to the hearing, the Respondent made an offer of £10,000 to settle the claims. The offer was refused out of hand by the Claimant and without any consideration as to the merits of the claim. Sometime after this, the offer was increased to £25,000. That offer was also rejected out of hand. The EAT upheld the Employment Tribunal's decision to award costs and the Tribunal's findings that the Claimant had failed to enter into meaningful negotiations to settle her claims such that the need for a seven day hearing could have been avoided, and that the Claimant was guilty of unreasonable conduct.

In Hooper v Sherborne School EAT/1375/08, the EAT upheld an Employment Tribunal order for a Claimant to pay £7,000 towards the Respondent's costs which amounted to £25,000. The EAT stated that the Respondent had made an offer of £5,000 to settle the Claimant’s claim at an early stage, and the Claimant's rejection of that offer were factors that the Employment Tribunal was entitled to take into account in awarding costs.

In Vaughan v London Borough of Lewisham and others, the Employment Appeal Tribunal (EAT) approved the employment tribunal decision to require a claimant to pay around £60,000 in costs. This claimant had turned down a £95,000 settlement offer.

The offers in the above cases were not dealt with by the Tribunal.