Whether witnesses swear an oath on the text of their chosen religion, smash a plate , or simply affirm that they will tell the truth, the whole truth, and nothing but the truth, should they then be found to have lied there are several possible consequences which could result including criminal prosecution for perjury or perverting the course of justice. A less draconian consequence might be to expect the miscreant to be penalised by being ordered either to pay or make a contribution towards the costs of the innocent party wrongly accused by the false evidence advanced.
This was the simplistic and logical conclusion of the Employment Tribunal in the case of Kapoor v Governing Body of Barnhill Community High School which determined that the fact the Claimant had lied was sufficient to equate to the proceedings having been conducted “unreasonably” in breach the 2004 ET Rules (now superceded by the 2013 Rules). It concluded that because the Claimant had lied she must have conducted the proceedings unreasonably, stating in its written judgement “It is as simple as that”.
However, on appeal the EAT disagreed that it was that simple and found an error of law in such an approach. When exercising its discretion to award costs, a Tribunal must have regard to the nature, gravity and effect of the unreasonable conduct and look at the whole picture of what happened in the case. Although the Tribunal had found that the Claimant could not be believed, that her evidence was untrustworthy so far as it was uncorroborated, and that she had falsified documents, other factors had not been specifically addressed when exercising its discretion.
These included the extent to which the Claimant’s lie had materially impacted upon the tribunal’s decision. In short, it was not sufficient for the tribunal to rely on certain findings of fact when determining liability but then failing to remind itself of them again when exercising its discretion on the issue of the award of costs. This was the incorrect legal approach and over-simplistic. The EAT therefore remitted the case back to the same tribunal to reconsider the more wholistic approach as set out in the leading case of Yerrakalva v Barnsley MBC.
