‘Oppressive’ litigants in employment tribunal cases should have punitive costs awarded against them, the Law Society has said in its response to a review of tribunal rules.
The Society also criticised the review’s proposed scrapping of the £20,000 cap on awards and called for provisions to be made for claimants lacking mental capacity.
However, the Society endorsed most of the review’s proposed changes to the rules, including the drafting of guidance to ensure consistency of approach, and saving time by combining pre-hearing reviews and case management discussions into a single preliminary hearing.
Mr Justice Underhill’s review of the employment tribunal rules, presented to the government in July, sought to streamline the process, improve understanding and cut costs.
In addition to new presidential guidance and combined hearings, it suggested an early paper ‘sift’ to strike out weak cases and a change to the withdrawals process that allows cases to close faster when a party ends the dispute at tribunal.
The Society gave ‘two scenarios’ that the extension of the costs regime to cover ‘oppressive’ conduct might address. One involved litigants in person who ‘constantly bombard’ their opponents with unnecessary correspondence and applications, increasing costs.
The other was the represented client who attempts to intimidate an unrepresented litigant with complicated demands or threats.
The review’s proposed scrapping of the £20,000 cap for awards envisaged employment judges assessing costs under the Civil Procedure Rules. The Society said that employment judges often do not have sufficient experience of assessing costs under these rules, which could lead to confusion and delay.
Finally, the Society noted that there was no provision within the rules for where a claimant lacks mental capacity under the Mental Capacity Act 2005. It called for guidance when a stay of proceedings or the appointment of a litigation friend is required.