One of the strengths or weaknesses (depending on your perspective) of the Employment Tribunal system is that it is a 'no-costs' regime: this means that win, lose or draw, neither party has to pay the legal costs of the other side.

There are numerous exceptions to this proposition however and this week I was amused by a judgment which emerged from Nottingham Employment Tribunal. The claimant in the case had failed in her claims for constructive dismissal and discrimination, having been represented by a gentleman who described himself as a "retired solicitor".

The Tribunal had found the claimant's evidence to be "totally unreliable", but also concluded that her representative had:

(i) complained about the arrangement of the furniture in the court room
(ii) complained about not being able to look witnesses in the eye when cross-examining
(iiI) tried to argue at one stage that he did not in fact represent the claimant (once he realised that a costs order was possible)
(iv) failed to comply with numerous orders in the case
(v) usually begun his cross-examination of witnesses with an irrelevant recap of his own experience in local government
(vi) regularly asked leading questions of his own witnesses (not allowed!)
(vi) questioned the witnesses in such a long winded way that they usually lost complete track of the question and, perhaps most amusingly of all,
(vii) made a snoring sound in response to an answer from a witness that he did not like.

The Tribunal concluded this was "the most outrageous conduct" and that both the claimant and her representative were "in the main unreasonable and on occasion abusive". As such, they awarded the employer every penny of the £20,000 in costs that they claimed. It is to be noted that it is the losing claimant that has to pay this £20,000, not the "retired solicitor".

A timely reminder therefore to those who may find themselves in Employment Tribunal litigation that the system is not entirely a no-costs regime, that parties need good advice and representation and - ideally - representation from specialist employment lawyers!    Should any WorkSmarter clients find themselves in this position, we can refer you to such specialists to ensure you are taken proper care of.