A few weeks ago, I was attending a meeting on employment tribunal (ET) procedure when, somewhat predictably, the representative of the British Chambers of Commerce robustly voiced their concern that employment judges and tribunals do not award costs against unsuccessful ET claimants as often as they should. In response, a member of the ET judiciary queried whether this concern related to the past, or to recent months. I interpreted this as a hint that employment judges were perhaps taking a more robust approach on costs than previously.
Sure enough, previously unpublished figures – released by the Ministry of Justice in response to a parliamentary question by Caroline Lucas MP – show that, in the first half of 2011/12, employment judges and tribunals made 247 costs awards to respondent employers. If replicated in the second half of the year, this would represent a 40% increase on 2010/11, and a 52% increase on 2009/10. On the other hand, the number of costs awards made to claimants was, if anything, slightly down.
Of course, an increase in the number of costs awards made to respondent employers could simply reflect an increase in the volume of ET claims dismissed at a hearing by employment judges and tribunals (the principal circumstances in which such a costs award are made). But the Ministry of Justice’s statistical bulletins show that the number of jurisdictional claims dismissed at a hearing in the first half of 2011/12 (7,900) was much the same as in the first half of 2010/11 (7,750). And, at 3.1%, the proportion of claims dismissed at a hearing in which costs were awarded to the respondent employer in the first half of 2011/12 was almost double what it was over the whole of 2010/11 (1.7 per cent).
Could it be that the constant attacks on the decision-making of employment judges and tribunals by employer lobby groups such as the British Chambers of Commerce and the CBI are having the desired effect?
Richard Dunstan is a policy wonk who has worked for Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.