EAT Practice and Procedure : Costs – ET Order of Costs – Rule 41(2) ET Rules 2004
Where threshold crossed for Employment Tribunal costs jurisdiction to be engaged (as the Employment Judge was entitled to find here), it is still a matter of judicial discretion as to whether such an award should be made. In exercising that discretion, r.41(2) ET Rules 2004 expressly recognised that an Employment Judge may have regard to the paying party’s ability to pay. This was recognised not just as a matter potentially relevant to the amount but, prior that stage, as a point that might be taken into account in deciding whether an award should be made. Here there was no indication that the Employment Judge had the considered the question of the Claimant’s means. There was no requirement on the Employment Judge to take into account the Claimant’s means before making an award and there may have been a question as to whether the Claimant had himself clearly raised the issue. On the other hand, as HHJ Richardson observed in Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06, the Employment Tribunal was required to state whether it had considered the issue and – if relevant – to state (simply) why it had not considered it to be a relevant matter.
Where (as here) dealing with the exercise of the Employment Judge’s judicial discretion, the Employment Appeal Tribunal should not interfere unless it had been plainly wrong or where the Employment Judge took into account irrelevant matters or failed to take into account relevant matters. Allowing that it was open to the Employment Judge not to take the Claimant’s means into account, the difficulty was that this was still a potentially relevant factor and there was no way of telling whether it had been taken into account.
That rendered the decision unsafe and the matter should be remitted to the same Employment Judge for fresh consideration in the light of this Judgment.
Eady QC HHJ
[2014] UKEAT 0216 – 13 – 2807
Bailii
England and Wales
Employment
Updated: 21 December 2021; Ref: scu.536685
