In the Autumn of 2012, Ronnie Fraser took a case to the Employment Tribunal against the University and College Union under the Equality Act 2010. He alleged that the union had allowed the campaign to boycott Israel to import antisemitism into the union; that there had developed a culture of institutional antisemitism within the union and that this had constituted harassment of him, as a Jewish member. There was, he said, a course of action followed by the union, including union officers, union structures and union branches. 34 witnsesses, including academics,a writer, trade unionists, Jewish community workers and Members of Parliament gave witness statements testifying to the “thickening toxicity” of the antisemitism which they witnessed within the union and there were a number of specific examples of antisemitism described to the Tribunal, chaired by Judge Snelson.
Judge Snelson’s formal written judgment found that what Ronnie Fraser experienced as antisemitism was in fact entirely appropriate treatment of him within the union. There was no antisemitism at all. Snelson’s tribunal found that Fraser’s case was “an impermissible attempt to achieve a political end by litigious means”. There is an account of the case and the Snelson judgment here.
In November 2013, the University and College Union pursued an action against Ronnie Fraser and his lawyers for £580,000 in costs. The Snelson tribunal, however, conceded that it had made statements in its judgment which could be thought to prejudice a costs hearing. It recused itself from hearing the costs case, as described here.
Today, the UCU continued its bid to make Ronnie Fraser and his lawyers pay. It insisted that a new tribunal be convened and today was about whether or not a costs hearing should go ahead. It was heard by a new tribunal judge, Judge Joanna Wade, not involved so far in the case or in the writing of the Snelson judgment.
The Employment Tribunal was set up to enable individuals to take large institutions, usually their employers, to court. For this reason its rules make it very difficult for costs to be awarded against a claimant; if people thought they could be stung for hundreds of thousands of pounds in costs it would deter them from going to the tribunal. It is possible for costs to be awarded against a claimant, but there are stringent conditions. Firstly, the claimant must not only be wrong, his action must be “misconceived or otherwise unreasonable”. And secondly the hearing for costs must be capable of being heard promptly and quickly, in summary form.
Lawyers for the UCU argued that both of these conditions could be satisfied. They said that the new tribunal could have one day’s reading preparation for a costs hearing and the hearing itself would be heard in another day; the decision on costs could be based on the material already in the Snelson judgment.
Barristers for Ronnie Fraser and his original lawyers did not agree. They argued that the pursuit of costs had already violated the requirement for promptness since this was the third hearing in over a year and since any costs hearing would have to look far beyond the Snelson judgment for evidence. Proving that the case was “misconceived or otherwise unreasonable” would require a long and complex case.
The Snelson judgment had made findings of fact on the substantive issues: were the charges made by Fraser proven?
But now the new tribunal was being asked a set of new questions: were the charges made by Fraser “misconceived or otherwise unreasonable”?
Normally, a tribunal which had already decided upon substantive issues could apply the new, more stringent test, for costs, to the same body of evidence and argument. But in this case there was a new tribunal. The Snelson tribunal’s determinations as to the substantive issues would be accepted, but the Snelson tribunal’s determinations as to whether the case was “misconceived or otherwise unreasonable” could already be seen, by Snelson’s own admission, to appear prejudicial to a costs hearing.
Where the Snelson tribunal did what it was supposed to do, that is, judge the substantive case, it would be accepted.
But where the Snelson judgment over-reached itself, in a consideration of whether the case was “misconceived or otherwise unreasonable”, Fraser’s barristers argued, its findings could not be relied upon in the costs hearing. This would mean that the costs hearing would have to make new judgments as to whether elements of the case were “misconceived or otherwise unreasonable”. This couldn’t be done by a quick one day trial but would require a re-examination of evidence, the presentation of new evidence and perhaps new cross-examinations.
The new Judge will decide if a fair hearing on costs is possible, and whether it would be within the rules of the Employment Tribunal.