It depends on the circumstances of the case, held the EAT inLook Ahead Housing v Chetty.
The two employees at the centre of this appeal had won their claims of race discrimination and unfair dismissal against their employer, the appellant. The employer then presented an appeal to the EAT in respect of the employment tribunal's judgment on remedies. All of the contested elements of the appeal were rejected, but one element was allowed by consent. The employer then applied for an order that one of the employees pay half the £400 EAT lodging fee and £1,200 hearing fee.
The EAT (Langstaff J) rejected the employer's contention and gave very clear guidance on this matter. Firstly "and most obviously" an appellant who fails on every point should not recover their appeal fees. In cases where an appeal succeeds in part, recovery and the amount recovered will depend on the individual case and in such circumstances it may be appropriate to order part-recovery. The key question is "whether it was necessary to incur the expense in order to bring the appeal" (paragraph 53).
If reasonable steps could have been taken to avoid having to bring the appeal, such as by applying for reconsideration or by seeking the agreement of the other party, it may not have been necessary to do so and the test would not be satisfied