The tribunal had made an earlier decision that the claimant had been unfairly dismissed and an order for compensation was made.

At this juncture the solicitor for the claimant made an application to the tribunal for costs, pursuant to Rules 38 and 40 of the Rules of Procedure on the grounds that the conducting of the proceedings by the respondent had been misconceived and/or had been conducted unreasonably. The representative later provided a schedule of costs.

In making his application for costs the claimant’s representative claimed that the respondent had, in conducting the proceedings acted otherwise unreasonably and/or the bringing or conducting by the respondent had no reasonable prospect of success. He also tentatively sought to rely on the circumstance, namely the respondent or his representative had, in conducting the proceedings, acted vexatiously; albeit a difficult ground to establish. The tribunal identified that it had to adopt a two staged approach to the application:

(1) whether it has been established that the relevant party has satisfied the terms of Rule 40(3) – for example a finding of otherwise unreasonable conduct and/or bringing or conducting of proceedings has been misconceived.

(2) whether to exercise its discretion to make an Order for Costs.

The tribunal considered a number of authorities in coming to its decision to order the respondent to make a payment in respect of the claimant’s costs. Whilst citing cases such as Lodwick v London Borough of Southwark [2004] IRLR 554 to highlight how cost orders are an ‘exceptional course of action’, the tribunal did not consider such action to be beyond its remit. Indeed it focused its power on the criteria established in Rule 40 and made it clear that where the respond ent’s conduct merits the imposition of a costs order then the ‘having regard to all the circumstances’ the tribunal is entitled to act as it deems necessary.

Practical Lessons from this Decision

Whilst the Tribunal indicated its willingness to impose a costs order when the circumstances of the case warranted it, a pertinent consideration arising from the case was the potential consequences for personal litigants. Whether or not an individual is professionally represented should not ordinarily affect thei r treatment, but the tribunal cited A Q Ltd v Holden [UKEAT/0021/12] as authority for the contention that some leeway must be given. In the interests of justice tribunals should not ‘apply professional standards to lay people’.

The fact that a lay person may have brought proceedings with little or no access to specialist help and advice is undoubtedly a relevant consideration when the tribunal exercises its discretion in respect to cost orders. To what extent this ‘leniency’ or ‘flexibility’ is applied by tribunals is perhaps more difficult to gauge.