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Winning in employment tribunals can still be costly

Cost Orders – the requirement that the loser pays the winner’s legal fees – are rare in Employment Tribunals. The most recent Tribunal statistics (for 2007/8) record that costs were awarded in slightly less than 1% of Tribunal cases. And the full amount of costs are not generally awarded – the average costs award for 2007/8 was £2095.

A recent case highlights the reluctance of employment tribunals to make a Costs Order against an unsuccessful Claimant. Her central claim of race discrimination was based on an allegation of racial abuse by her manager. The Tribunal found that the manager had not said what was alleged, instead it found that the Claimant had lied.

However, the Tribunal turned down the employer’s application for costs on the basis that, although the Claimant had lied, she had not acted unreasonably.

The Employment Appeal Tribunal decided that this decision could not stand. If a Tribunal finds that the central allegation is a lie, it must also find that it was unreasonable to make the claim. In such circumstances, costs must be awarded.

If you need advice on an employment tribunal claim, please contact us – we would be pleased to discuss it with you.


Employment Department

Raj Dhokia: r.dhokia@fgdlaw.co.uk
Martin Fine: m.fine@fgdlaw.co.uk