The price of success: how you can win but still lose at a tribunal - Veterinary Practice
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The price of success: how you can win but still lose at a tribunal

Whilst most of us will have fond memories of the sunny weather during 2013, Lord Sugar may prefer to forget this year altogether.

The 2010 winner of The Apprentice, Stella English, took advice from lawyers and decided to bring a Claim of Constructive Unfair Dismissal following her resignation – costing him around £50,000 in legal fees.

It’s a common mistake to under-estimate the difficulty of winning a claim for Constructive Unfair Dismissal. The burden of proof is on the claimant to prove that his or her employer behaved in a way that destroyed or seriously damaged the relationship of trust and confidence. The evidence given when cross-examined in the Tribunal must be robust enough to discharge this burden.

In the Apprentice case, Stella English said that she felt like an “overpaid lackey” with little or no day-to-day contact with Lord Sugar. Notwithstanding the sixfigure salary paid to her, she felt that there was no real work for her to do and that the role was a sham.

Witnesses gave evidence over six days. The Tribunal concluded that there was never any promise that Miss English would be Lord Sugar’s “right hand woman” and that she never, at any time during her employment, had complained about being marginalised or demeaned.

Furthermore, when she did resign she simply said that she didn’t want a “nine-to-five” office job. Under cross-examination Miss English said that her work had been meaningful and valuable.

Claim should never have been brought…

The Tribunal concluded, “This was a claim which should never have been brought.”

But for a veterinary practice, it’s not just the legal fees that can cause serious damage. The disruption to the business and the loss of time for management, consultation and care is incalculable.

Additionally, principal or partner surgeons are entitled to feel especially aggrieved if they feel that they did nothing wrong. Indeed, Lord Sugar felt that he had bent over backwards to help Stella English. So it’s not surprising that he went back to the same Tribunal to request an order that Miss English reimburse some or all of his legal costs. However, the application was refused.

The fact that Lord Sugar still had to pay his legal costs may surprise you, but the reason for this is simply to be found in how the system has evolved. Employment Tribunals were created so that basic employment rights could be enforced by the general public, and were intended to be accessible.

Indeed, Legal Aid was not generally available for tribunals, and as a general rule if the claimant lost his or her case, he or she would not have to pay the employer’s costs.

It doesn’t automatically follow…

Over the last 30 years, employment law has become one of the most intricate and specialised areas of legal practice. Yet the “no costs” rule remains in place, so that it doesn’t automatically follow that the loser pays the winner’s costs.

However, there is an exception: when the losing party has, in bringing the case, “acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by [the loser] has been misconceived”. This formulation is taken from the current Employment Tribunals Rules of Procedure.

Firstly, when deciding whether a costs order should be made, the Tribunal will consider whether there has been unreasonable conduct. If that is satisfied, it will then consider whether the discretion should be exercised to make a costs order.

The focus in these circumstances is on how the losing party has acted and, therefore, what was in his or her mind when bringing or pursuing a claim.

For example, someone who has worked in a veterinary practice for six months who has no legal representation and limited means might issue a claim for unfair dismissal, but might not be aware that the qualifying period of two years’ service is required in order to claim.

A misconceived claim…

Whilst such a claim would, from the objective viewpoint of an employment lawyer, be misconceived from the outset because it would have no prospect of success, the issue is: has the bringing or conducting of the proceedings by the employee been misconceived?

In this case, arguably not. The person could say that he or she was not aware of the two-year rule. This situation evolves, however as, for example, lawyers for the practice will set out the law in their defence to the claim.

They will urge the claimant to take correct advice, whilst an employment judge will explain the law at a preliminary hearing.

The instruction of lawyers by an unsuccessful claimant can also have an effect on the assessment of that person’s mental state for the purposes of determining how he or she behaved.

If the claimant is given advice that is too optimistic, or even negligently over-estimates the prospects of success, this has an effect on his or her state of mind so that he or she does not believe that pursuing the claim is unreasonable or that it is misconceived. However unfair, the sins of the claimant’s adviser can restrict the practice’s ability to recover its costs.

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