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Employment Law

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Veale Wasborough Vizards , 27 JUL 2015

Unreasonable conduct - when will a costs order be made at tribunal?

Unreasonable conduct - when will a costs order be made at tribunal?
Charlotte Williams
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) has overturned a costs order made against a claimant who had been blamed for the adjournment of her case.

In Schaathun v Executive & Business Aviation Support Ltd, Miss Schaathun brought a claim against her former employer, Executive & Business Aviation Support Ltd (the Company), for unfair dismissal. Miss Schaathun was Norwegian and had been living in England since 2002.

A week before the hearing, Miss Schaathun emailed the Employment Tribunal (ET) to ask for a Norwegian interpreter to attend the hearing to assist her and her witnesses 'if possible'. Due to the unavailability of an interpreter, the ET adjourned the hearing. The ET awarded costs against Miss Schaathun on the basis that her conduct had been unreasonable; she had left it unreasonably late to make the request for an interpreter and the request was unnecessary given that Miss Schaathun's English was very good.

Miss Schaathun appealed against the costs order. She argued that she had not requested an interpreter, merely enquired as to whether one could be available. Furthermore, she was not responsible for the adjournment of the proceedings because the ET could not provide an interpreter. Miss Schaathun had not been asked whether she would proceed without one or whether she would like to provide her own interpreter.

The EAT allowed the appeal and set aside the order for costs. It held that, on a natural interpretation of Miss Schaathun's request, the ET judge had 'erred in construing the claimant's email of 9 November 2010 as a request that the tribunal make a Norwegian interpreter available for the substantive hearing. The claimant was asked if it was possible for an interpreter to be present. She did not indicate that she would or was applying for an adjournment if that was not possible.' The EAT also highlighted that as a non-native speaker it could not be held as unreasonable to enquire about an interpreter.

Best practice

While very fact specific, this case highlights that the threshold for unreasonable conduct is high and a costs order will only be awarded if the conduct is of a sufficient degree.

This case also provides a pertinent warning about making applications to an Employment Tribunal. Parties are reminded of the need to be specific and clear when submitting a request in order to ensure that there is no confusion over what is being sought. Parties should also ensure that applications are made as soon as possible to avoid delays.
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