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Costs in Employment Tribunals

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Two recent decisions on costs in employment tribunals, both from the Employment Appeal Tribunal.

First, in Kingston upon Hull City Council v Dunnachie (no. 3) (dealing principally with whether the Ogden Tables can be used in tribunals when assessing future loss), Burton P. held that a tribunal has no jurisdiction to order that costs be paid to a litigant in person in respect of his preparation time for his tribunal case. Note that this may change if the Secretary of State brings in Regulations under the Employment Act 2002, which specifically enables tribunals to make orders for costs in respect of wasted preparation time.

Second, in McPherson v BNP Paribas,, HHJ Birtles upheld a tribunal decision ordering an Applicant to pay the costs of the entire proceedings when he withdrew his claim just two weeks before the hearing. Although the EAT made it clear that late withdrawal of a claim is not, in itself, necessarily unreasonable conduct, it formed the view that the Applicant's pattern of failing to comply with interlocutory orders and reluctance to disclose documents showed that he was only bringing the litigation to try to force an offer of settlement out of the Respondent. In those circumstances, his late withdrawal of the claim amounted to unreasonable conduct and the entire costs of the proceedings would be payable.