Employment tribunal costs: difficulties of recovery against a losing party

By Simon Fennell

Lord Sugar’s recent win in an employment tribunal proved bittersweet when he was unable to recover any of his costs, but his experience is far from unusual.

The starting point for litigation in the employment tribunal, unlike other courts, has always been that both parties bear their own costs and the losing party is not automatically required to contribute to the winner’s legal expenses. However, in certain, very limited circumstances it is possible to ask a tribunal to make an award of costs.

Lord Sugar is just the latest in a line of frustrated respondents unable to persuade an employment tribunal to award costs against a losing claimant. In his case, not even a judgment stating that the case ‘should never have been brought’ was sufficient for Lord Sugar to be able to recover some of the £50,000 costs that had been incurred in defending a claim for unfair dismissal by former winner of The Apprentice Stella English…

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