Although tribunals are allowed to be critical of a party to a hearing, the Employment Appeal Tribunal (EAT) said in Oni v NHS Leicester City that they should not come to conclusions on issues that anticipate arguments about costs which have not yet been put before them.

Basic facts

Ms Oni, a trained nurse, brought claims for unfair dismissal, direct race discrimination and victimisation. The tribunal, which dismissed all her claims, was highly critical of her, saying that she was evasive and equivocal under questioning and that she and her husband (who represented her) must have known that the claims had no prospect of success.

It was also highly critical of the way in which her husband had cross-examined witnesses. As a result, it placed a guillotine on the length of time he was taking in his cross examination but did not impose the same restriction on the other side.

The tribunal made a finding that “not only was the bringing of the various claims unreasonable but the manner in which they have been conducted was also unreasonable”.

Ms Oni then asked the tribunal to recuse (withdraw) itself from the hearing dealing with costs on the ground of bias, arguing that if the employment judge had not been so sympathetic throughout the hearing to her former employer, they might not have applied for costs.

Tribunal decision

The tribunal refused, saying that having already heard all the evidence it was in the best position to decide the application for costs. It also found that Ms Oni had the means to pay the costs of the proceedings which were likely to be substantial as the hearing had lasted for 13 days.

It went on to award NHS Leicester City the full cost of the proceedings to be assessed by the county court.

EAT decision

Upholding her appeal, the EAT said that it was not unusual for a judge or tribunal to deal with different aspects of a case at different hearings. It set out three principles to be applied as follows:

  1. The tribunal which dealt with the liability hearing should also deal with the question of costs
  2. The fact that a tribunal expressed itself in terms that were adverse to the claimant in the course of giving reasons for the liability judgement was not a ground for recusal, and
  3. Tribunals should not express themselves in a way that indicates they have already made up their mind before hearing argument on issues which would need to be decided if an application for costs was made. Otherwise it might look as though the tribunal had pre-judged the question.

In this case, the tribunal had to resolve issues of fact which also required it to take a view of Ms Oni’s credibility but it overstepped the mark when it made a finding as to whether she had acted reasonably in bringing the proceedings. In particular, it not only had in mind the test which applies when making an award of costs but it had also found that the criteria to award costs had been met.

As to the question of the Ms Oni’s ability to pay costs, the EAT considered that as the case was to be re-heard it was enough to say that the tribunal’s decision on that issue could not stand. However, it also observed that irrespective of whether a tribunal was obliged to consider someone’s means, it would be wise to do so when the costs were substantial.

It also pointed out that litigants in person may not know what information they need to provide in a case where a claimant wishes her means to be taken into account. It therefore recommended that the claimant should complete form EX 140. This is the form which would be required if the case were to be referred to the County Court for detailed assessment.