Employee ordered to pay tribunal fees

In the case of Horizon Security Services Ltd v Ndeze the Employment Appeal Tribunal (EAT) ordered the employer to repay the employee’s tribunal fees of £1,600 after a successful appeal. The judge indicated it was generally expected that a successful party would be given their fees. Guidance was given about the factors which are likely to be taken into account in considering whether to award fees to the winning party.

Background
Employers are well aware of the introduction of Tribunal fees from July 2013 and there has been a good deal of coverage in the press about the impact of the new fee arrangements. The new rules which accompanied the introduction of fees specifically allow Employment Tribunals and the EAT to award the winning party an amount equal to the fees they have paid although to date there is very little guidance about what judges will take into account when deciding whether to award fees in particular cases.

Facts
The facts of the Horizon case are that the employee was successful in the employment tribunal and the employer then successfully appealed to the EAT. The employer paid fees of £1,600 (a £400 fee when lodging its appeal and a £1,200 hearing fee) to bring their appeal. After it succeeded the employer applied to the EAT to order the employee to pay its costs.

Judge Eady QC considered the application and did give Horizon their costs. She commented that the general principle was now that a successful party should be awarded the fees they have paid. She highlighted that there may be circumstances where this would not be the case; for example if the applicant had only partly succeeded or if it could be shown they did not have the means to pay. As these circumstances did not apply in the Horizon case she ordered the employee to pay the employer’s costs.

Comment
This case confirms what the Government has indicated, that a successful party will normally be awarded the fees they have paid although this does not automatically mean they will also be awarded other costs; for example legal costs incurred in bringing or defending a claim. Consideration of costs applications in these circumstances will still involve a Judge looking at compliance with tribunal procedure and/or whether a party has acted unreasonably in bringing the claim or in their conduct during the tribunal process. It is anticipated that tribunal fees are likely to be a factor when considering the level of any potential settlement.

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