PRACTICE AND PROCEDURE – Costs
Costs – power of EAT to make award of costs in both ET and EAT proceedings
The Respondent had succeeded in its appeal against a finding by the Employment Tribunal that it had unfairly dismissed the Claimant; whilst the question of liability would have needed to be remitted to the ET, the EAT had also substituted a finding that any award made would be nil (applying Polkey), given that the Claimant’s conduct meant that he would inevitably have been summarily dismissed for the charge relating to his falsification of a contractual document for personal gain. The Respondent applied for its costs both before the ET and EAT.
Held: dismissing the applications.
Although the EAT had the power to make an award of costs relating to the ET proceedings and the application had been made in time (time running from the date of the EAT Order, which had finally disposed of the ET proceedings), it was appropriate for the ET to determine the merits of the application and the amount of any award if made.
As for costs before the EAT, it could not be said that the Claimant’s defence of the appeal had been misconceived in all respects. Even if it had been unreasonable to defend the appeal in respect of the Polkey point, there would still have been a hearing on liability; it was unclear what, if any, additional costs arose from the Claimant’s defence of the Polkey aspect of the appeal. In the circumstances, it would be inappropriate to make an award of costs in respect of the EAT proceedings.
Citations:
[2017] UKEAT 0218 – 16 – 0610
Links:
Jurisdiction:
England and Wales
Employment, Costs
Updated: 02 April 2022; Ref: scu.601911