Should a respondent be ordered to reimburse a successful claimant’s tribunal fees?
Usually, according to the EAT in the recent case of Portnykh v Nomura.
On 29 July 2013 fees were introduced in employment tribunals and the Employment Appeal Tribunal (“EAT”). A party appealing to the EAT must pay a £400 issue fee and a £1,200 hearing fee. Rule 34A(2A) of the new EAT Rules allows (but does not require) the EAT to make a costs order against the respondent up to the amount of the fees paid by the appellant, where an appeal is allowed in full or in part.
Portnykh v Nomura
Dr Portnykh successfully appealed to the EAT against an employment tribunal’s case management decisions in his claim of unfair dismissal against Nomura International plc. He had paid an issue fee and a hearing fee totalling £1,600, but also applied for fee remission. His remission application still had to be decided at the time of the appeal hearing.
The EAT decided that a costs order should be made in respect of the £1,600 fee, payable only if the application for fee remission was refused. The following factors were taken into account:
- It was irrelevant that Dr Portnykh had behaved in an unhelpful and unco-operative way when conducting the litigation, as this had not significantly influenced the appeal;
- It did not matter that this was an appeal against a case management decision, rather than an appeal against a substantive decision;
- Nomura had the means to pay the order;
- Nomura had, looking at the question broadly, substantially lost the appeal.
The EAT has made it clear that, even where a respondent has acted properly when defending a claim, a successful claimant is likely to be able to recover their fees from the respondent. This is consistent with both:
- a statement made in the High Court during the Unison judicial review of tribunal and EAT fees that a successful claimant should generally expect to recover the fees they have paid from the respondent; and
- the factsheet “Employment tribunal fees for individuals (T435)” which now states that “the general position is that, if you are successful, the respondent will be ordered to reimburse you“.
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