Does an employment tribunal urging a claimant to focus on whether certain of his claims had any prospect of success, and whether his claim was "so very weak having come apart in cross examination", give rise to an expression of a concluded view on the issue of costs?
No, held the EAT in the EAT in Hussain v Nottinghamshire Healthcare NHS Trust.
During the course of employment tribunal proceedings, the tribunal warned the Claimant that he may be at risk of costs in the above terms. Costs were ultimately awarded against him.
On appeal, the EAT held that the warning was not of the type given in Oni v NHS Leicester City, where the warning given during the course of a hearing gave rise to an appearance of bias because it appeared to determine the issue of costs, which was yet to be decided.
In Oni the tribunal described the manner in which the claimant had conducted proceedings as being 'unreasonable'; using the language of costs. The language used by the tribunal in this case, the EAT held, did not amount to a concluded view on the issue of costs and so there was no appearance of bias.
With thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary and to Daniel Barnett’s Emploment Law Bulletin.
