Oni v Unison

Where the costs jurisdiction is engaged by unreasonable conduct, an Employment Tribunal must still exercise its discretion whether to award costs and, if so, in what amount. A presumption of unreasonable conduct following a deposit order does not make a costs award automatic.

The Tribunal must consider all relevant circumstances. Means may be considered both when deciding whether to award costs and when fixing the amount, but they are not the only consideration. The Employment Appeal Tribunal may substitute its own decision only where one outcome necessarily follows from the Tribunal's findings and undisputed facts.

The Claimant unsuccessfully pursued claims against Unison. Some claims were struck out and the remaining claims were dismissed after a final hearing. Following an earlier deposit order, the Nottingham Employment Tribunal held that she had acted unreasonably in continuing the claims and ordered her to pay all of Unison's costs, subject to detailed assessment by the county court.

On appeal, the Claimant did not challenge the finding that the costs jurisdiction had been engaged. The issue was whether the Tribunal had failed to exercise its discretion under the costs rules. A further issue was whether the Appeal Tribunal could decide costs itself, or should remit the matter and, if so, to which tribunal.

1. Appeal allowed. The Employment Tribunal correctly found that the Claimant's conduct brought her within the costs jurisdiction. Its finding that she unreasonably pursued the claims after the deposit order remained binding.

2. However, the Tribunal erred by treating that finding as requiring a costs order unless the Claimant's means justified a different result. Under Rule 76 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the first stage is whether the jurisdiction is engaged. At the second stage, the Tribunal must decide, in all the circumstances, whether to award costs and in what amount.

3. Means are a discretionary consideration under Rule 84. They may bear both on whether costs should be ordered and on amount, but do not exhaust the relevant considerations. The Tribunal should also consider proportionality, the nature, gravity and effect of the unreasonable conduct, and the appropriate form of assessment under Rule 78.

4. The Appeal Tribunal could not substitute a decision that no costs be awarded. Costs involved a fact-sensitive discretionary assessment capable of producing a range of lawful outcomes. In the absence of consent under section 35(1)(a) of the Employment Tribunals Act 1996, the Appeal Tribunal could decide the issue itself only if one outcome necessarily followed.

5. The two remitted questions were whether a costs order was appropriate in all the circumstances and, if so, its form and amount. Although remission to the original Tribunal would normally promote efficiency, features of its reasons created insufficient confidence that it could reconsider the matter without preconceptions. The questions were therefore remitted to a freshly constituted Tribunal at the London hearing centre.

• Employment Appeal Tribunal: Allowed the appeal and remitted the discretionary costs questions to a fresh Tribunal: [2015] UKEAT 371_14_1702.
• Employment Tribunal (Nottingham): Ordered the Claimant to pay the Respondent's whole costs, subject to detailed assessment. That order was set aside insofar as it resulted from a failure to exercise the second-stage costs discretion.