Employment Flash - 1st May 2009
Something light for the Bank Holiday... if the EAT appear to set out a legal principle but say that they are not setting out a legal principle, is there a legal principle?
Daleside Nursing Home Ltd v Mathew [2009] UKEAT 0519 08
As part of M's race discrimination claim against D she had alleged that she had been called a 'black bitch'. The ET did not accept that evidence and made a clear finding that the allegation was false, that it had been made up some time later in a context whereby the making of the allegation was a method of deflecting attention from disciplinary matters M was anticipating. The ET declined to make a costs award against M. D appealed.
The EAT concluded there was a stark inconsistency between finding that effectively at the heart of the race discrimination claim was a deliberate and cynical lie but that M in bringing or conducting the claim had not conducted herself unreasonably or inappropriately. They stated: "In our judgment, in a case such as this, where there is such a clear-cut finding that the central allegation of racial abuse was a lie, it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably... on the particular facts of this case it was the fact that the lie was explicit and so much at the heart of the case that... it is appropriate for us to conclude that this was an overwhelming case where the Tribunal has failed properly to address the point, and as a result has come to a perverse conclusion."
Therein appears to lie a statement of principle. A conclusion of perversity essentially requires that the finding the ET makes is one that no reasonable tribunal could make having regard to the facts and the law. In the EAT's judgment therefore wherever a false allegation lies at the heart of the claim it would be unreasonable conduct on the part of the Claimant and warrant (subject to any other material factors, normally including taking account of the Claimant's means) the making of a costs order. However, Wilkie J stated at the beginning of the EAT's judgment that: "...the actual case itself does not raise any issue of legal principle of general application, and we want to make it clear that we have approached this appeal on the basis of the particular clear-cut facts of this case and that nothing that we say is intended to set out any more general statement of legal principle."
In so far as any future ET when making such clear-cut findings is minded (no other factors weighing in favour of making such a decision) not to make a costs order, the EAT's "views" ought to prove persuasive.
Employment Team
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