Employment Law Advocates

Further to my discussion about Daleside Nursing Home v Mathew here, it was inevitable that the issue of costs would rear its head again. In Dunedin Canmore Housing Association v Donaldson, the Scottish Employment Appeal Tribunal followed Mathew if, that is, it is possible to follow a decision that purports to establish no principle of law. In this case, the claimant tried to enforce a compromise agreement in circumstances in which she was in breach of its terms relating to confidentiality. There was, rightly, no attempt to suggest that false denials are any less serious than positive lies with the consequence that respondents who falsely deny allegations against them are now likely to face an award of costs as well.

On its facts, the judgment is much less troubling than that in Mathew because the claimant was clearly ‘caught out’ under cross-examination and then¬†tried to change her story. Therefore, the evidence that she had lied was¬†unusually strong. However, it was disappointing to see no acknowledgement of the importance of this fact in the judgment. There was no discussion of the standard of proof required, or even of where the burden of proof lies, no mention of the need to put allegations of lying squarely to a¬†witness, and no discussion of the extent to which, if at all,¬†a tribunal¬†would be¬†permitted to apply the discretion that it has not to award costs in such a situation and, if it can, what factors should be taken into account. It is not acceptable to deal with¬†these cases under the rubric of perversity, where¬†it should surely be possible to set out unambiguous principles of law which can be applied in a consistent way.