Arrowsmith v Nottingham Trent University

An employment tribunal’s decision to award costs must be based on the particular facts and on one of the circumstances in rule 40(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. A claimant’s lie, or failure to prove a central allegation, does not automatically justify costs. The tribunal must assess the nature, gravity and effect of the conduct in context. A finding that the claimant advanced materially untruthful assertions may support a conclusion that the proceedings were conducted unreasonably. The tribunal has a discretion whether to award costs and may have regard to the paying party’s ability to pay, but need not limit the award to a sum immediately affordable. An appellate tribunal should not interfere where the decision was properly open to the employment tribunal.

The appellant claimed that Nottingham Trent University had discriminated against her on grounds of pregnancy by failing to appoint her to a Business Development Officer post. The employment tribunal dismissed the claim after finding that the relevant decision-makers did not know or suspect that she was pregnant. On review, it affirmed that decision and ordered her to pay £3,000 in costs under rules 40 and 41 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

The Employment Appeal Tribunal dismissed her appeal and refused permission to appeal: UKEATPA/1708/09/CEA. Permission was later granted to this court on the making and amount of the costs order. The central issues were whether the tribunal was entitled to find that her conduct was unreasonable and whether the amount awarded was within its discretion.

1. Appeal dismissed. The employment tribunal was entitled to order costs of £3,000 against the appellant.
2. Under rule 40(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the question is whether, on the particular facts, the paying party or representative acted vexatiously, abusively, disruptively or otherwise unreasonably, or whether the proceedings were misconceived. The assessment is fact-sensitive. A decision in another case does not dictate the result.
3. Daleside Nursing Home Limited v Mrs C Mathew, UKEAT/0519/08/RN, did not establish a general rule that a lie or a false central allegation must result in a costs order. The approach was correctly understood in HCA International Ltd v May-Bheemul, UKEAT/0477/10/ZT: a lie may support costs, but the tribunal must examine its context, nature, gravity and effect.
4. The tribunal was entitled to interpret its finding that the appellant’s assertions about the decision-makers’ knowledge of her pregnancy were untrue as a finding that she had advanced materially untruthful assertions. Since her case depended on those assertions, the tribunal was entitled to regard her conduct as unreasonable within rule 40(3).
5. Under rule 41(2), the tribunal may have regard to ability to pay when deciding whether to make a costs order or determining its amount, but it is not required to confine the award to what the paying party can presently afford. The £3,000 figure reflected the appellant’s limited means and was within the tribunal’s discretion.

• Court of Appeal (Civil Division): The appeal against the Employment Appeal Tribunal’s refusal to allow the costs challenge to proceed was dismissed. The court upheld the employment tribunal’s costs order of £3,000.
• Employment Appeal Tribunal: HHJ McMullen QC dismissed the appeal against the review and costs decision and refused permission to appeal: UKEATPA/1708/09/CEA.
• Employment Tribunal: The tribunal dismissed the pregnancy-discrimination claim on 17 July 2009, affirmed that decision on review, and on 17 November 2009 ordered £3,000 costs.