I have long been vexed by the EAT's decision in Telephone Information Services v Wilkinson [1991] IRLR 148, in which the EAT held that it is not "frivolous or vexatious" for a Claimant to pursue an unfair dismissal claim even though the employer has offered to pay the maximum statutory compensation, as he is entitled to pursue his claim to obtain the declaration of unfair dismissal. In essence, this gives a Claimant carte blanche to force a Respondent to incur massive legal costs even though the Respondent is keen to settle its way out of the case.
Telephone Information Services v Wilkinson was decided under the old procedural rules. It would probably be decided differently now, unless the employee was seeking - and had a reasonable prospect of obtaining - reinstatement or reengagement.
This is because, in the absence of a request for reinstatement/reengagement, it would normally be unreasonable to continue with the proceedings once the maximum compensation is offered (the test of unreasonable conduct of proceedings did not exist when Wilkinson was decided - the costs triggers were simply frivolous or abusive conduct).
Alternatively, Telephone Information Services v Wilkinson could be distinguished on the basis it was decided at a time when the parties were not under a duty to follow the overriding objective (ie cooperating, and acting in a way to save tribunal time).
This decision has been quoted against me several times in the last couple of years. It might have been good law in twenty years ago, but it is time for a change.
Daniel Barnett is co-author of Costs in Employment Tribunals (Jordan Publishing)
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