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Costs can be awarded for work done before ET3

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Was a tribunal entitled to award costs in a claimant's favour incurred before receipt of the ET3 on the grounds that the response had no reasonable prospect of success?

Yes held the EAT in Sunuva Ltd v Martin.

At the final hearing Sunuva's witness confessed its decision to dismiss the claimant was predetermined. The tribunal found it followed that Sunuva should have conceded unfair dismissal from the outset; it's response had no reasonable prospect of success. Whilst the Claimant's discrimination claim may have still continued, an admission had the potential to avoid a contest or at least limit the issues. The Claimant was awarded costs of £17,136.90.

Sunuva appealed contending it was unlawful to award costs for periods prior to receipt of the ET3. Rejecting the appeal and upholding the costs order, the EAT held that although the provisions of Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 governing costs had changed in wording since McPherson v BNP Paribas, the case remained good law.

There was nothing in the Rules limiting orders to a particular stage so long as that party was legally represented or preparing for the claim themselves.

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.