Costs

The general rule in employment tribunal litigation is that each side should pay their own costs, but tribunals can award costs where they decide that a party or their representative has acted “vexatiously, abusively, disruptively or otherwise unreasonably”, or where the proceedings were “misconceived”, in other words where they had no reasonable prospect of success.

Although still comparatively rare, the number of costs orders made by tribunals is increasing at an alarming rate — up from 487 in 2009 to 612 in 2011-12. In 2012, 81% of all costs orders were made against claimants. There also seems to be an increase in the number of tribunals referring costs “to be assessed” by the County Court.

The tribunal can make a costs award up to a maximum of £20,000 or can order for costs to be assessed, either by an employment judge (since July 2013) or by the County Court. In either case where costs are assessed, there is no cap on the amount that can be awarded. Tribunals must consider a claimant’s ability to pay when making the award. If, exceptionally, they decide to disregard a claimant’s means (for example, because they have seen evidence that the claimant has lied about their means) they must say so expressly, and explain their reasons.