Costs in Employment Tribunals

The EAT has handed down a decision considering the correct approach to take when assessing costs against a litigant.

In Jilley v Birmingham & Solihull Mental NHS Trust, the tribunal made costs orders against the Claimant, and referred the assessment to a county court. The potential costs liability was substantial.

Remitting the question of costs to the tribunal, the EAT stated that:-

• it is incumbent on a tribunal to consider whether it is going to take the paying party's financial means into account. It is not good enough to delegate that task to the county court (paras. 44 and 46);
• a useful option to consider for the tribunal, when referring costs to the county court for assessment, is to place a cap on an award to reflect the paying party's ability to pay (para. 47).