On 29 July 2013 fees were introduced in the Employment Tribunal (“ET”) and Employment Appeal Tribunal (“EAT”). Issue fees can be up to £400 whilst hearing fees can cost £1,200. This is a significant cost for claimants to expend and accordingly the ET and EAT Rules give the ET and EAT the discretion to make a costs order against respondents up to the amount of the fees paid by the claimant/appellant, where the claimant/appellant is successful.
In this case, the appellant had successfully appealed to the EAT against an ET's case management decisions in his claim of unfair dismissal against the respondent. He had paid an issue fee and a hearing fee totalling £1,600 and asked the EAT to exercise its discretion to make a costs order against the respondent in respect of the fees paid.
The EAT ordered the respondent to pay the appellant's fees for the appeal. In making this decision, the EAT did not criticise the respondent for having resisted the appeal but took into account the fact that the respondent had substantially lost the appeal and had the ability to pay.
The EAT rejected the respondent's argument that it should not pay the appellant's fee because of the way in which he had conducted the tribunal litigation. For example he had not prepared bundles or disclosed authorities. However, the EAT found that the appellant's conduct of the litigation, though unhelpful and uncooperative, was not dissimilar to the approach to litigation taken by other litigants in person and it had not made any significant difference to the conduct of the appeal. The EAT therefore decided not to take the appellant's conduct into account.
This case provides useful guidance on the factors a tribunal may take into account when exercising its discretion to make an award of costs. It also reinforces the recent statement made by the Lord Chancellor as part of Unison’s legal challenge against tribunal fees that a successful claimant should generally expect to recover the fees they have paid from the respondent.
Knowing that it is likely that respondents will be ordered to pay a successful claimants’ tribunal fees, will assist employers when considering whether to make an offer of settlement and at what level as it is likely that claimants who have already paid their fees will expect them to be reimbursed as part of any settlement package.
Amy Jones is a specialist Employment Solicitor. If you need Employment advice please contact Amy on 01382 229111 or email ajones@thorntons-law.co.uk or alternatively contact a member of the Employment Law team.
