Deposit Orders and Costs

Thanks to James Medhurst of Employment Law Advocates for preparing this case summary

Should full costs be awarded automatically be awarded if a claim is lost following the payment of a deposit?

No, held the EAT in Oni v Unison.

The Claimant lost all of her claims for substantially the reasons given in a deposit order which had earlier been made against her. In accordance with Rule 39(5) of the Employment Tribunal Rules, it followed that the deposit would be paid to the Respondent and there was a presumption that her conduct in persisting with the claims had been unreasonable. The employment tribunal found that this presumption had not been rebutted and it also considered the Claimant's means. It awarded the Respondent the whole of its costs, to be assessed by the county court.

However, it failed to exercise its discretion and failed to consider all of the circumstances before reaching its decision about costs. The EAT held that this failure to exercise discretion was an error of law and remitted the decision on costs to a fresh tribunal.