In an employment tribunal, the normal rule is that each party pays their own costs, regardless of whether they win or lose their case. However, in some circumstances, one party may have to contribute to the other’s employment tribunal costs.

Making a claim as an employee

If you decide to issue a claim, you must normally contact the Advisory, Conciliation and Arbitration Service (ACAS) first. They will try to help resolve the matter.

If the initial attempt is unsuccessful, you will need to issue a claim in your local tribunal. You do not have to pay for the services of ACAS, nor pay a fee to make a tribunal claim.

What are the costs involved?

The costs involved in taking your case to a tribunal will depend on your circumstances, but may include:

• your legal fees, if you instruct a solicitor
• the cost of any expert witnesses
• the cost to you for time spent preparing the case (if you don’t have professional help).

Bear in mind, you may have to prepare a bundle of documents. Employers will have similar costs.

The cost of instructing a legal representative will vary depending on the case and who you instruct. You should be aware that this will include preparation of the case as well as attendance and representation at the hearing.

Overall costs may vary from several hundred pounds to much more. You should ask your legal representative to give you a clear indication of what the costs are likely to be.

Will you have to pay the other side’s employment tribunal costs?

If you have legal representation, they should warn you if you are at risk of having to pay the other side’s costs.

What circumstances may require you to pay their costs?

Conducting the case in an unreasonable way

If you lose your case and the tribunal decides your conduct was in some way unreasonable, vexatious, or completely misconceived, you could be ordered to pay some or all the other party’s costs.

This may happen if:

• your case never had a chance of success
• you lied or misled the tribunal
• you failed to comply with tribunal orders or to attend the hearing.

Rejecting a ‘reasonable’ offer of settlement

Your employer may have made you an offer to settle the case, often referred to as a Without prejudice, save as to costs offer. The tribunal will usually not know about this offer when deciding the case.

If the tribunal eventually awards the same as, or less than, the offer that was made, the other side may try to argue that you should pay their costs from the date of the offer.

The basis for this argument is that if you had accepted the offer, none of the subsequent costs incurred would have been necessary.

Will you have to pay employment tribunal costs upon request?

Just because the other side asks for an order that you pay some or all the costs, it does not necessarily mean the tribunal will agree. You will be given an opportunity to explain why you should not have to pay.

That said, if you receive an offer of settlement it is always important to take legal advice as to whether you should accept it.

Can the other party be ordered to pay your employment tribunal costs?

The rules outlined above apply to both parties. If you haven’t paid for legal representation, you can claim for time spent preparing your case. This is known as a preparation time order. At the time of writing (Autumn 2021) this is calculated at the rate of £41 for every hour spent preparing.

Unsure whether to claim?

If your claim is reasonable, and you conduct it in a reasonable way, it is unlikely you will be ordered to pay costs. However, if you are in any doubt, it is always advisable to take legal advice about the merits of your claim and any risk of having to pay costs.

At Springhouse, our team of employment law solicitors can advise you on whether you have a good claim and ensure that you are aware of correct procedure, should you bring a case. Get in touch with us today for an initial consultation.