How Martin Searle Solicitors successfully defended an unfair dismissal claim brought by two employees against Swim UK.
In early 2010, Paul Smith, Managing Director of Brighton-based Swim UK, found his workload was drastically increasing. He hired a PA to help.
However, when Bobbi, the new PA, joined she quickly became the target of unpleasant comments and harassment by two male colleagues. As 2010 drew to a close, their bullying behaviour culminated in Bobbi being humiliated in front of her colleagues.
That same evening, she was also the subject of violent and threatening comments on Facebook. As the perpetrators were both Facebook ‘friends’ of the Swim UK Facebook page, these comments were widely seen by clients as well as colleagues.
The next day, Bobbi showed Paul the obscene and violent comments explaining that she was frightened of the people behind them. It was also clear the comments would have a negative effect on the business’s reputation.
Paul immediately began an investigation which led to him implementing the disciplinary procedure. After these fair and thorough processes, the two employees were found guilty of gross misconduct and dismissed summarily without notice. They both appealed his decision but were unsuccessful. They subsequently lodged Employment Tribunal claims on the grounds that they had been victims of discrimination and unfairly dismissed.
Paul came to see the Employment Law Team in our Brighton solicitors’ office when he received notice of the claim against the business. After reviewing the facts, we advised Paul that we considered the dismissals to be fair.
Fortunately, Paul had bought legal expense insurance to protect his company. Paul was advised by us that he had the right to instruct his own solicitor, rather than use the insurance company’s in-house solicitor so he instructed us to represent his company in defending these Tribunal proceedings.
Due to the nature of the claim, we wrote to the claimants at an early stage putting them on notice that they were at risk of a costs order being made against them at a hearing. We also invited them to withdraw.
Costs are not usually awarded, even if an employer successfully defends a claim. However, in cases where the employee has acted unreasonably − including acting abusively, disruptively or bringing a claim which is misconceived as it has no merit − the employer can apply for their Employment Tribunal costs.
In Swim UK’s case, the former employees insisted on pursuing their claims for unfair dismissal and discrimination although they later withdrew their discrimination claims at a pre-Hearing review.
Paul succeeded in defending all claims and the Tribunal made a finding that the claimants had been fairly dismissed.
Most importantly, it found that their claims were unreasonable and vexatious. As a result, the Judge made a costs order against both claimants ordering them to pay £3,000 each towards the company’s legal costs.
Tribunals are increasingly making costs awards where either party acts unreasonably in bringing or defending claims. However, to be able to make a successful application your representative should issue cost warnings as early as possible. This allows the Judge to see that the claimant or defendant had the opportunity to withdraw without costs consequences at an early stage and that they knew of the likelihood of a cost award if they chose to ignore the warning.
These types of judgements will hopefully be a deterrent for both employers and employees who vexatiously bring and/or defend claims which should have been withdrawn or settled out of court.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2022