Costs Ordered Against Claimant Who Lied

The Employment Appeal Tribunal (EAT) has held in Daleside Nursing Home Limited v Mathew that as an Employment Tribunal had found that the Claimant had lied, this was unreasonable conduct and an award that the Claimant therefore pay some costs should have been made.

Issues

The issues before the Tribunal concerned a series of incidents between Mrs Mathew and the management of Daleside Nursing Home Limited, which Mrs Mathew considered direct racial discrimination. She also raised a claim for unlawful deduction of wages concerning reduction in her salary following change of ownership of the nursing home.

Background

In relation to the three incidents said to constitute racial discrimination, the Tribunal concluded that Mrs Mathew had failed to prove the facts. Furthermore, two of these incidents did not concern an allegation of direct racial discrimination.

Mrs Mathew contended that she had been subject to explicit racial abuse having been called a “black bitch” by her manager Miss Rankin, during a telephone call on 18 May 2007. The allegation was denied by Miss Rankin.

The Tribunal concluded that Miss Rankin did not call Mrs Mathew a “black bitch” as “if the Claimant had been called a black bitch  she would not have waited nearly three weeks to raise the issue and done so only because it looked as though she herself might be taken through a disciplinary process. She raised the issue on 6 June 2007 when she was resigning. Such a phrase is so offensive it is incomprehensible that she would not have made her objection much sooner. Mrs Mathew had no explanation for the delay”. This said the EAT was a finding of a deliberate and to an extent, cynical lie.

With regard to the claim by Mrs Mathew that her employer was guilty of an unlawful deduction of her salary, the Tribunal concluded as the new owners of the nursing home were ignorant of the fact that Mrs Mathew had previously been paid an hourly salary of £11.50 and since she did not raise any objection to their payment of £11 per hour, in effect she had affirmed her agreement to the change of rate. Although Mrs Mathew asserted she had written to Daleside on a number of occasions from May to December 2006, pointing out the discrepancy in her pay, the Tribunal concluded the nursing home did not receive this correspondence. However, they stopped short of making a finding Mrs Mathew had never sent these letters and were in fact a fabrication in an effect to support her claim.

Having dismissed Mrs Mathew’s claims, the Tribunal considered their power to make an application for costs under the Employment (Constitution and Rules of Procedure) Regulations 2004. Although the Regulations state a tribunal or chairman may make a costs order if they consider the party who has brought the proceedings, or in conducting proceedings has acted unreasonably or the bringing or conducting of proceedings has been misconceived, the Tribunal concluded a costs order should not be made. Instead they took they view that Mrs Mathew and her husband who had acted as her representative, had not acted unreasonably in bringing or conducting the proceedings because they “did have a genuine belief that their claim had some merit … They genuinely felt they had a claim but were merely wrong and they lost”.

Appeal

The EAT concluded that the Employment Tribunal had been inconsistent in their approach given the fact on the one hand they had found “at the heart of the racial discrimination case was a deliberate and cynical lie” contrasted with a finding that Mrs Mathew had not acted unreasonably in bringing or conducting the claim. Accordingly, the Employment Tribunal was wrong to reject a costs order, as some award in respect of costs should have been made against Mrs Mathew.