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Costs in Employment Tribunals

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[Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary]

In Topic v Hollyland Pitta Bakery, the EAT upheld a decision to award costs against the Claimant because her claim was misconceived.

First, the tribunal had found that Ms Topic genuinely believed that she had suffered discrimination, although her beliefs had no basis in reality. The genuineness of her beliefs was not relevant to whether her claim was misconceived, but was relevant to the exercise of the discretion to award costs. An argument that having regard to her mental state infringed her Article 8 right to privacy could not be raised for the first time on appeal.

Second, whether a party is dishonest is relevant to costs, but not determinative. An honest case may still be misconceived or conducted unreasonably.

Finally, the tribunal had rightly taken account of Ms Topic's failure to lodge a grievance. The fact that the tribunal could reduce her compensation under s207A of TULRCA 1992 for breach of the ACAS Code was beside the point, because it could only apply to a successful claim. The tribunal had rightly been considering whether there was any evidence to support Ms Topic's claim; her failure to lodge a grievance was part of that.