Costs awarded in favour of school after unreasonable conduct in ET proceedings

A recent employment tribunal (ET) costs judgment is a useful reminder that, although costs awards remain unusual in ET proceedings, they may be made where a party acts vexatiously, abusively, disruptively or otherwise unreasonably in the way proceedings are brought or conducted.

Ms Chandrika Punshon v The Royal Latin School is a notable example because the outcome favoured the school.

Background

Ms Punshon brought claims against The Royal Latin School for direct race discrimination, direct sex discrimination, harassment related to race and harassment related to sex. Those claims were dismissed in an earlier liability judgment.

Costs in the ET

In most ET claims, each party bears its own costs. However, the ET rules allow costs orders where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting proceedings, or where a claim had no reasonable prospect of success. Any award remains discretionary, and the ET must decide whether it is appropriate to make an order in the circumstances.

Why the school was awarded costs in this case

The ET found that the conduct in this case was both unusual and extreme. It referred to repeated warnings given to Ms Punshon, the volume of complaints, the time spent dealing with applications and correspondence, and the impact on witnesses.

The ET also found that parts of the claim had no reasonable prospects of success and that some allegations were not properly put to the relevant witnesses during evidence.

Although the hearing had been expected to conclude within the original five-day listing, it became part-heard because of Ms Punshon’s unreasonable and disruptive conduct. As a result, the school incurred the additional cost of a further hearing day and further written submissions.

The ET also placed weight on earlier findings, including conduct such as ignoring instructions not to contact witnesses directly, making unfounded allegations of fraud and serious wrongdoing, sending aggressive communications, and acting in a way designed to cause stress and anxiety. The ET found that Ms Punshon had been given clear warnings and had not heeded them.

Amount of the costs order

The school pursued legal costs of £92,903.40. The ET ordered detailed assessment in three parts:

• 100% of the costs attributable to the vexatious, abusive, disruptive or otherwise unreasonable conduct of proceedings already identified by Employment Judge Green in the 16 April 2024 judgment.
• 35% of the remaining legal costs of defending the claim, after deducting the costs awarded under Employment Judge Green’s earlier order.
• 100% of the legal costs attributable to the final hearing going part-heard, including legal work undertaken during that part-heard period.

The full decision can be found here.

Key lessons for schools

This decision should not be read as making costs routine. It remains difficult to obtain costs in the ET, and an unsuccessful claim does not, in itself, justify a costs application. However, the case is a useful example of the type of evidence that may support a school’s application where conduct has gone beyond weak pleadings or ordinary procedural difficulty.

Practical steps for schools

When faced with similar circumstances, a school should:

• Keep careful records of unreasonable correspondence, failures to comply with directions, wasted hearing time, cost warnings and the impact on witnesses.
• Address inappropriate direct contact with witnesses or staff promptly and clearly.
• Consider any costs application carefully, support it with evidence, and focus it on the additional expense caused by unreasonable conduct.

Proportionality remains critical in cases such as this. In the right case, this judgment shows that a school may recover costs where the tribunal is satisfied that the costs jurisdiction has been properly engaged.

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