In the Employment Tribunal System the general presumption is that each party will have to pay its own legal costs. Even since the Tribunal rules were changed in 2004 there have only been a very modest number of costs orders made when compared to the total number of claims presented to the tribunals.

The Employment Tribunal may make an order that one party pays the costs of the other party if the party being ordered to pay has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings, or that his/her representative has so acted in conducting them, or if the bringing or conducting of the proceedings by that party has in the tribunal’s opinion been misconceived. The Employment Tribunal is required to say exactly which type of behaviour or conduct has resulted in it making a costs order against one or other party.

Orders that one party pay the costs of the other party are still rarely made. Even when such orders often fail to cover the full amount of costs that have been incurred. Therefore the sensible approach is still to assume that each party will have to meet its own costs- win or lose. This is a factor that any party to Tribunal litigation should give serious consideration, as the costs can accumulate quickly, especially when the steps to compile witness statements and a trial bundle are reached.

There is currently no fee to pay to the Tribunal Service on commencing a claim in the Employment Tribunal. The Government did state after the Supreme Court ruled the costs illegal that it would review the situation, but has not taken any further action since then in relation to it.