A friend is taking her ex-employer to tribunal, and one of the issues is equal pay. There have been 2 hearings so far and there will be another before getting to a tribunal.

There is to be an independent expert witness which the judge has ruled that the costs should be split 50/50 between the 2 parties. We know this is going to be expensive, but does anyone have any idea of possible costs for this? Obviously it will depend on hourly rate, how long it takes to look at the issue, travel expenses etc, but any info would be appreciated.

Just to add some guidance, in cases such as these, that means that all or part of the claim hinges on a technical issue which is beyond the experience and skills of the tribunal. That is a huge wild card. Expert witnesses are rare, and court imposed expert witnesses even rarer. Depending on the size of the claim, this may force the employer to reconsider a settlement offer. If they do, this is the time to haggle hard but reasonably. The offer isn't a confession that they know they will lose. It is a commercial assessment of what is worse - the cost of a settlement or the cost of the tribunal. But obviously, they have just been told that the case is not a slam dunk and there is something that not even the tribunal is fully confident about their technical ability to deliver judgement on. Remember that the same applies to the claimant - she doesn't know which way the expert wind will blow either, so it isn't as clear cut as perhaps she thinks? So I would advise her to be ready should a settlement offer come back to the table - know what she is prepared to settle for, then if an offer comes in, if she doesn't have legal representation who can do this for her, do this:

Take the offer amount and subtract it from what she wants to settle for. Add the difference to her own figure. Add a "fair supplement" - that means make a guess at an amount on top of that that she might get away with without scaring them off (this varies depending on the original amounts, and also based on your own knowledge of the employer and their size). Make sure this covers all her expenses and losses, plus a reasonable award element - don't underestimate. Offer that back! It's hard to give better advice without knowing the employer and the circumstances - you might be able to go higher if a judgement might have knock on effects on the rest of a workforce, especially if it's a big workforce. A larger employer can generally afford to pay more or may be pushed into settling by an insurer. Some employers are more belligerent than others and may never settle. But at least it gives her a start as to what to expect.

One other point - if she is represented, remember that she will almost certainly have to pay the solicitors fees out of this amount. Clarify that before agreeing anything, if she doesn't already know. She doesn't want to agree an amount and then discover that most of it goes to the solicitor. Which I've heard of that happening more than once!

If - and this is a big gamble for both sides - the expert report comes in and favours one side or the other in terms of the technical point(s) then, depending on the scope of the claim, it may be all over. If it goes to the employers argument then they won't offer any further settlements and will trust on the judgement going their way (it still doesn't have to, but probably will); if it goes to hers she will probably get a much better offer to settle before they incur any more costs. But - that takes definite courage to play that game.

Thanks Sangie. They are being extremely belligerent and a large enough company not to worry about what it costs. My friend has already sorted what the solicitor will cost, but obviously it's a risk if she doesn't win and has to pay for expert witnesses, employers costs etc.

I think they will fight it all the way as it could have repercussions for the organisation and their reputation.

if she is poor then any costs order wont be enforceable anyway. I'm sure that this 50/50 split is to determine each side's conviction in their cause.

No - the 50/50 split is normal procedure.

Caro - it is highly unlikely that she will have to pay employers costs. That generally only happens when someone insists of pursuing a case that they have been told isn't good. The fact the tribunal needs to call in an expert witness means that the tribunal doesn't think that. If they aren't sure she has no case, then her claim can't be frivolous. The threats of employers to pursue costs are usually just that - threats, and empty ones. And they may be belligerent - but even those can crumble. As I said before, if her case affects other workers, then the cost to them may be much higher than a settlement. A settlement means nobody won and nobody has proven or admitted discrimination. If you are a big company and have hundreds or even thousands of workers potentially impacted, and with backpay being in play, that can be an enormous sum of money. Plus, equal pay is one of the few areas that still attracts media attention - the potential for reputational damage to a company for discrimination is greater. Especially if they happen to want public sector contracts.

She has already had to pay 1 lot of the employers costs for the first pre-hearing as her ET1 wasn't detailed enough. The judge said she could apply to amend but the application failed. With the cost of the tribunal and her own costs mounting she's worried how much more it will cost. Some aspects have been accepted hence the expert witness.

I don't think there will necessarily be a lot affected within the organisation but they hate bad publicity and keep up a pretence of being soft and fluffy.

She has already had to pay 1 lot of the employers costs for the first pre-hearing as her ET1 wasn't detailed enough. The judge said she could apply to amend but the application failed. With the cost of the tribunal and her own costs mounting she's worried how much more it will cost. Some aspects have been accepted hence the expert witness.

 

I don't think there will necessarily be a lot affected within the organisation but they hate bad publicity and keep up a pretence of being soft and fluffy.

That is distinctly worrying then. That is the kind of warning shot that usually indicates the tribunal think you are wasting their time. Even with accepted parts. And it usually isn't the first warning shot either. Long before that stage there has generally already been at least one very clear statement that continuation risks a costs order. They don't beat around the bush. I don't like to ask but are you absolutely sure she knows what she is doing? One cost order against her already is serious territory. Tribunals rarely order costs. And to order costs without the case being over... Well, put it this way... I have never heard of a tribunal doing that. Ever.

It hasn't even got as far as tribunal yet and it would be nice to think that her solicitor and barrister know what they're doing, although it was a toss up whether it would be her or her solicitor had to pay the costs.

You see now why she's dubious about pursuing it further, but is loathe to let her ex-employer off with their appalling and arrogant behaviour towards her.

I know she has good reason to go to tribunal, but was badly advised at the start. How anyone can do this without representation is beyond me because it seems if you don't know the letter of the law, no matter how strong the case, you can really come a cropper.

What I don't understand is why, if the original pre-hearing judge thought there was no case, she allowed my friend to apply to amend her original application and a second hearing for a full day.

I am somewhat confused. Why, or even how, could a tribunal make her solicitor pay for this? The bill would be hers. It seems to me that there are two possibilities here. Either you don't understand what your friend is telling you (which seems unlikely given what I can see of your posting history) or she doesn't understand what is going on. The judge won't tell her that she doesn't have a case and she can't proceed. That isn't the way it works. It's your legal right to go to a tribunal. But they will drop hints, often hints the size of small herds of elephants. And I think it is just possible that "the claim needed amending" might have been an agreement that the claim was weak! Since she is represented the hints will be directed at her legal team, who ought to be well aware of how "hints" work. My advice at this point would be a serious talk with her legal team about her prospects, and WHY they think whatever they think. It is very easy to be side-lined by the desire to get back at a poor employer. But being a bad employer or treating your staff badly isn't in itself unlawful. So being "appalling" or "arrogant" isn't against the law. But if she is genuinely worried about this, she deserves an explanation - even if it isn't what she wants to hear. Before it costs her more. But I do agree - all the statistics say that you stand a better chance of winning with legal representation. It isn't impossible to win without it, but you are running the odds. If for no other reason than that a lawyer OUGHT to tell you whether you have a chance or not! Unfortunately, where people are funding their cases, I have seen lawyers taking awful liberties with not explaining the odds to clients in order to increase their fee earning. I've even seen lawyers who have told people they need a legal defence against an allegation that they don't need to answer to! There's bad eggs in every basket. This is where trades union membership really is worth it - if you have no real prospect of winning you'll be told. If you have, they fund it for members. It doesn't help right now, but it is something to consider for the future. That or legal insurance.

I have been with her to both hearings and sat in on her meetings with the solicitor and barrister. Obviously the case is about issues with the employer where they have in her (and my) opinion acted outside the law.

The solicitor is on a nwnf basis so would get a %age of any win and I would have thought it unlikely that they'd carry on if they didn't expect to get paid somewhere down the line.

See under the heading wasted costs in this link.

https://www.youremploymentlaw.net/solving-employment-problems/legal-costs-in-tribunals/?mobile=1

Incidentally, the union were useless when the events were happening and their solicitor no help so gave up on them.

Good to see you around Caro, hope you are keeping well.

I would have thought the solicitor must think there is a reasonable chance else he wouldn't have taken the case on a NWNF basis.

Why, or even how, could a tribunal make her solicitor pay for this?

A wasted costs order potentially? There is provision in this for an ET rules, which is sometimes used to make a wasted costs order against a legal representative directly rather than against a party to proceedings.

See for example http://www.bailii.org/uk/cases/UKEAT/2007/0093_07_0810.html in which a wasted costs order was made against Alan Roberts & Co employment law consultants because the tribunal considered that witness statements had been inadequately prepared, documents had not been disclosed, a defence was raised in closing submissions, an accusation of bias on the part of the tribunal led to an adjournment and the cross examination of the claimant had been unreasonable.

If a badly drafted or incorrect ET1 led to an unnecessary interim hearing, the Tribunal may have awarded the respondent the costs associated with preparing for that hearing. It sounds like the costs order was made against the claimant (although the representative may have got a ticking off and told by the judge that a wasted costs order was being considered).

Hi SP.

Thanks for stopping by. Any and all help much appreciated. x

I see. But that leaves a question as to the strength of the case if not even the tribunal is convinced by what the lawyers have put forward, and were even considering that her legal team were wasting their time. It just all sounds very haphazard. I've never come across this particular area before in a tribunal - never needed to because our lawyers don't get into such pickles.

It's worth noting that NWNF usually get paid regardless. They insure to backstop their losses. So if they win the client pays, but if they lose there is insurance in place. If this weren't the case, many of them would be out of business by the end of the week. I'm not sure of the way this works, because I doubt it covers them taking on any old case, but I understand it had to do with percentage assessments of win possibilities. Quite how insurers can do this I don't know.

I'm disappointed that her union were not more positive. Like anything else, there is good and bad. Equally, I can't say which they were - members tend to find their union "bad" when there is little the union can do, or the lawyers assess the case as not likely to win. You can't always. But that is water under the bridge as whatever they did or thought it's out of their hands. Just a shame that if there is a case, the lawyers don't seem to be doing much of a better job of it. It's hard enough to go to tribunal without having this degree of difficulty.

The company was going through a takeover and considering the scale of job losses the union were noteable by their absence!!

Unfortunately, screw-ups by lawyers are perhaps a bit more common than one might hope. Particularly in the Employment Tribunals which allow non-legally qualified people to act as legal representatives. Sometimes you can get pure procedural screw-ups which are not necessarily reflective of the Tribunal's view of the merits of the case, although it is difficult to comment decisively on that without actually being at the hearing.

A traditional NWNF fee arrangement comes with ATE (after the event insurance). The insurance covers the risk of having to pay costs to the other side and can also cover court/tribunal fees. However the insurance would not cover the claimant solicitor's own fees, the solicitor would not get paid if the claim is unsuccessful but would get a premium if the case is successful. Obviously the details are key - if ATE insurance were in place I would have thought it would cover cover a costs order of the nature described, but I guess it wasn't in place in this case.

I don't think it was, and it's something my friend is looking at herself, but she needs to decide what to do before she spends out more.