The case of Khan v Kirklees Council is not only an example of how not to run your tribunal case, but also an argument for the abolition of costs awards in Employment Tribunals.
Mr Khan (The Claimant, a teacher) alleged disability and race discrimination against his employer. As the Chairman of the tribunal was also a Chair of School Governors at a different school the Claimant believed that such a person would naturally side with a school against a teacher. Mr Khan therefore requested for another Chairman to be appointed to the case.
Possibly because the chairman refused to withdraw, the Claimant seems to have adopted a policy of non-cooperation with the tribunal as regards the scheduling of the case. He also made numerous allegations of bias against the tribunal.
A Freedom Of Information Act request was sent to the Chairman's school by the Claimant in order to gather evidence that would undermine the Chairman's position (An offstead report had previously criticised his school's disability and race discrimination policy).
The Claimant also pursued an internet campaign during the case which described Tribunal members and the Respondents in racist terms,and alleged that the Tribunal panel were showing "repeated and racial islamophobic allegiance with the Respondents".
Despite there being no vacancies for his teaching speciality the Claimant even applied for a teaching post at the Knutsford School where the Tribunal Chairman was the Chair of Governors. When Mr Khan did not get a post, he started another tribunal case over this. This case was struck out by another Chairman brought in from outside the region.
Owing to The Claimant's particular scheduling needs the case of 50 days lasted 4 years until it was struck out for repeated non attendance by Mr Khan.
The schools full costs of £103,000 were awarded against The Claimant by the Employment Appeals Tribunal (EAT).
Whatever the behaviour of Mr Khan, his case nevertheless gives no justification for costs to be awarded in tribunals. Mr Khan's behaviour was quite exceptional and the risk of a costs award against him did not seem to provide any deterrence for him in any case. However, the threat of costs at tribunals are a major inhibition to the bringing of valid cases by workers. Such costs threats are routinely used, often successfully by employment lawyers as a means to bully vulnerable workers into abandoning their claims.
If as with Mr Khan the threat of costs does not seem to inhibit those with weak cases, what is the point in awarding swingeing costs?
The awarding of costs by tribunals only serves to encourage the hiring of lawyers and barristers in what was originally supposed to be the small man's court. In the interests of justice it should not be possible to run up such costs in a tribunal. Those who insist on retaining lawyers to plead their cases should not have any illusions about being able to recover their costs.
It nothing short of ludicrous that cases that may potentially win a couple of thousand pounds for a worker often run up lawyers bills of tens of thousands of pounds.
A tribunal may sometimes decide that a sanction is needed to be imposed on an offending party. Rather than awarding costs a tribunal should be given the power to impose a fine at a reasonable level. It is never reasonable to impose a sanction at a level that will drive a Claimant into bankruptcy (with all that entails for the claimant's family).
The present system in employment tribunals of encouraging the use of lawyers and barristers with potentially astronomical costs awards helps no one but the lawyers themselves, and powerful institutions with deep pockets who are willing to pay any price to win a case and thus deter future claims by other workers.
Advice for those contemplating running their own Employment Tribunal cases (see WorkRep for further advice):
*Running your own case can be very stressful.
and it is better to not succumb to the temptation of believing everyone is out to get you. It may sometimes be possible that
this is indeed the case but allegations
of this type need supporting evidence.
*Walking out of a hearing is a mistake even if the tribunal seems biased. One needs to cooperate with the tribunal
whilst asking (at the time it happens) that any allegations of bias be recorded in the protocol.
*With the possibility of large
costs being
awarded against a claimant now it is important to act reasonably and with a cool head during a case, notwithstanding that the history of the case and the behaviour of the employer's lawyers can make this a difficult task.
The full case can be found here: Khan v Kirklees Council
© Workrep 31 / 03 / 2007