To award costs or not to award costs?

It used to be the case that recovering costs within the employment tribunal was an exception rather than the rule, and whilst the threshold for recovering costs still remain high, it seems that there has been somewhat of a shift.

Arguably, employment judges are becoming more willing to make cost orders in cases where, for example, there is no reasonable prospects of success. So, how far can the Tribunal go to warn a party of the risk of costs without appearing biased?

In a recent case (Hussain v Nottinghamshire NHS Trust), the EAT held that there was no bias when the Tribunal warned the claimant during the hearing of the risk of costs in pursuing claims that appeared fundamentally weak, having come apart during cross-examination. Indeed, it was noted that not to warn a party of potential costs might amount to a failing in the Tribunal’s duty to ensure that parties are placed on an equal footing.

Costs warning are a great way of focusing a party’s mind, especially an unrepresented claimant, and whilst there is no one better to focus the mind of a party than an employment judge, the key to a successful application for costs is to issue warning throughout the proceedings rather than rely merely on the Judge’s warning at hearing.