If you’ve had to pay a employment tribunal fee to bring your employment tribunal claim, you’ll want to recover it at the end of proceedings if you can.
The mechanism for doing so is a costs application under rule 76(4) of the tribunal rules:
76(4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party.
So if you win, the tribunal can make an award of costs against the respondent, for the amount you paid in fees. For example, if you paid the full claim fee and hearing fee in a type B claim such as unfair dismissal the tribunal can award costs under rule 76(4) of up to £1,200. Any costs award will be added to any award of compensation. If the tribunal awards you £4,900 for your unfair dismissal, plus the full value of the fee, the respondent will owe you £6,100.
This power is separate to the tribunal’s other powers to award costs. So considerations which apply to other costs applications, such as whether a party has behaved reasonably, don’t apply.
That fees are dealt with on the basis of costs, rather than a refund from HMCTS, is significant. It means that getting the fee back involves the same risk as recovering your award. If the respondent becomes insolvent or otherwise seeks to evade payment, you may not get your fee back either, leaving you out of pocket. Considering this risk should be part of deciding whether to bring your claim.
Making the application
Although fees were introduced from 29th July 2013, cases involving them are still working their way through the system. So tribunal practice is still developing. I suspect most judges will ask, at the end of cases where the claimant wins: ‘Is there an application for costs in respect of a fee?’
If they don’t, you will need to make an application. If judgment is given at the tribunal hearing, the moment to do so is immediately after the tribunal has delivered judgment — when you know you’ve won. If judgment is reserved, it’s probably best to make a pre-emptive application, either at the end of your oral submissions or after the tribunal announces that they’ll reserve judgment, so the tribunal can deal with everything at the same time.
It doesn’t need to be complicated. Just saying ‘Having won / if I win, I’d like to apply for costs in respect of my tribunal fees.’ is likely to be sufficient in most cases. The general approach is intended to be that you will recover the fee if you win, see paragraph 15 of R (on the Application of Unison) v The Lord Chancellor.
You should bring along evidence showing how much you paid in fees.
If you don’t make an application for costs at the hearing, you have 28 days from the date judgment was sent to the parties, see rule 77. Just write to the tribunal applying for costs in relation to your fees.
Where its not so simple
If you win, the tribunal has the power to award you the value of the fee you paid in costs. But it has discretion to award less or nothing at all.
Partial awards or no award at all are likely to be most common where the claimant has technically won, but really lost. For example, if you win your unfair dismissal claim, but your compensation has been reduced by 100%, the tribunal may well conclude that, in substance, you lost, and decline to award costs.
The best way of defeating this sort of argument is to win your case as convincingly as possible. Failing that, however, you need to be ready to argue that you have succeeded enough to justify recovering the fee.
The other likely area where claimants will lose their applications is where there conduct of the litigation has been unreasonable in some way. Tribunals have a general power to award costs against claimants because of unreasonable conduct. That power is exercised rarely. I suspect tribunals will somewhat less reluctant to knock a little off the award of costs where they think conduct has been poor. Again the best way of avoiding this is to behave reasonably in the first place.
If you lose
Rule 76(4) only applies if you win. If you lose there is no separate power for the tribunal to award costs in respect of the fee. In the vast majority of cases there will be no prospect of recovering the fee. The policy intention is that parties only recover the fee where they win.
In rare cases, however, it might be worth considering an application under rule 76(1)(a) on the basis that the respondent has conducted the litigation unreasonably. For example, if they have won on the basis of evidence that was produced after you paid the hearing fee, but which should have been produced before that point, you may be able to argue that the hearing fee was incurred because of their unreasonable behaviour and costs against them are justified.