You have lost your employment tribunal case (or sometimes have won it) and now you are faced with a costs action by the respondent.
Costs awards are still relatively rare (1% of cases that actually go to a hearing) but as the situations whereby costs may be awarded have been very considerably widened since 2004, cost threats even before you have properly begun your case need to be taken seriously and once a costs action against you has begun you need to take it very seriously, especially if the costs award comes after having lost your tribunal case.
Whereas before 2004 you would have needed to have behaved in some way unacceptably, you can nowadays become liable for costs even if you inadvertently slipped up or your case was not as promising of success as you had thought.
An employment tribunal may award costs of up to £10,000 (the tribunal may refer the case to a county court for a decsion as to the exact costs to be awarded) for having acted
Employers can also base a costs action on a claimant having refused so-called 'Calderbank' offers (although the legal justification for this at employment tribunl is tentative and used more to support a claim of 'unreasonableness' on the part of the claimant.
A judge is despite his best intentions liable to sympathise more with the well constructed arguments and impeccable English of a fellow lawyer than yourself so it will normally help you to have good advice and if possible representation at the costs hearing.
Taking costs threats seriously does not however mean that you need to cave in to them. Employers' representatives are often devious and may try to follow up the threats by cajoling you to settle with them in advance of a hearing at a 'discount'.
Two rules are therefore to be kept in mind:
The case of Simms V McKee saw an employer penalised for making costs threats against a worker: Costs Threats - EAT Ruling May 2006
The following case is possibly the most extreme case of costs being awarded at an Employment Tribunal. Swingeing costs were awarded against the
claimant. This case should not however put you off if you think you have a valid case to argue. It is only included here as an aid as to what not to do and what is not acceptable when conducting an employment tribunal case.
The High Costs Of Justice
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