No Discrimination Compensation, just an adverse costs order: Pyrrhic Victory – and Pyrrhic Defeat?
Posted on 23rd February 2024 at 13:33
This week’s visit to the often strange world of the first instance employment tribunal features a “plague on all houses” decision on compensation and costs. Unusual as it may be for tribunals to award costs, it is even more unusual for them to award no compensation at all following a finding or an admission of unlawful discrimination.
In Willis v GWB Harthills, disability discrimination was admitted in January 2021. Discussions turned to settlement. Mr Willis made a pitch for £2.5 million. He turned down an offer of 10% of that sum. The parties walked away from negotiations. Following a 4 day hearing in October 2022, and 3 days of deliberations, the tribunal awarded Mr Willis nothing. Harthills applied for costs, citing Mr Willis’ unreasonable conduct of the proceedings. They had incurred £380,000; they sought £277,000; they were only awarded their Counsel fees for the remedy hearing.
Mr Willis’ downfall was partly down to his unreasonable approach towards assessing his losses, and partly down to the tribunal effectively finding that he had given a deliberately false account on multiple occasions, and had created misleading documents throughout.
In the face of this, how come Harthills experienced a similar fate? By walking away from judicial mediation. Even though they considered it would be futile, this did not stop the judge from observing “experience says that even where there appears to be much between the parties, mediation may find a way through”. He went on to add that the employment tribunal was largely a costs free jurisdiction; there had been a liability admission; this left the claimant entitled to pursue remedy; and that the remedy claim itself was not in any sense unarguable. Whether there was any off the record correspondence comprising offers and threats, we may never know, but once again we see strong disapproval of simply walking away from mediation rather than participating and trying to make it work, even against all odds.
For what it is worth, Harthills are a firm of solicitors and Mr Willis was its former managing partner.
Are you up against an opponent who seems unwilling to listen to reason? Even when you want to try to strike a deal? Unsure of the possible benefits of mediation? Get in touch. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
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