Colletti v Alcaline UK Ltd & Anor

Where an appeal succeeds wholly or partly, the discretion to reimburse fees under Employment Appeal Tribunal Rules 1993 rule 34A(2A) principally turns on the extent of the appellant’s success and whether it was necessary to incur the fees. A partly successful appeal will ordinarily justify some reimbursement, although the amount may be moderated.

Conduct before the Employment Tribunal is not relevant to that discretion. Under rule 34A(1), unreasonable conduct is a fact-sensitive question. A costs award should broadly reflect the additional costs caused by the unreasonable conduct, and the paying party’s means may be considered.

The claimant had brought three appeals from decisions of an Employment Judge. He succeeded in restoring claims for race discrimination, notice pay and nights-out allowance, but failed on several other grounds, including allegations of apparent bias.

Following the substantive appeal judgments, the claimant sought reimbursement of £2,400 in appeal fees under rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 and costs under rule 34A(1). The respondents sought costs under rule 34A(1), principally because of the claimant’s allegation that the Employment Judge appeared biased.

The central issues were the proper exercise of the fee-reimbursement discretion, whether either party had conducted the appeal proceedings unreasonably, and the appropriate amount and set-off of any costs orders.

1. The claimant’s application under rule 34A(2A) succeeded in part. The precondition was met because the appeals had been allowed in part. The principal consideration was the extent of success, together with whether it had been necessary to incur the fees. The claimant had achieved substantial practical success, but had failed on some issues. A reduced reimbursement of £1,800 was therefore appropriate.

2. Conduct in the Employment Tribunal could not reduce or defeat an award under rule 34A(2A). Such conduct was capable of founding an application in the Employment Tribunal under rule 76(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, but was neither a claim for costs under the EAT Rules nor relevant to the amount of fee reimbursement.

3. The claimant’s application for costs under rule 34A(1) was dismissed. The respondents’ solicitor had reasonably filed evidence responding to serious allegations concerning the Employment Judge’s conduct. Whether conduct is unreasonable is a question of fact and degree, and the conduct alleged fell well short of that standard.

4. The respondents’ application succeeded only in respect of the claimant’s allegation of apparent bias. The allegation was improper and unreasonable: an informed and impartial observer could not reasonably infer bias from the matters relied on. The separate complaint concerning failure to ensure equality of arms was not unreasonably pursued, given the errors concerning the claimant’s case and documents.

5. The costs attributable to the unreasonable bias allegation were assessed broadly, rather than by precise calculation, at £1,250. Taking account of the claimant’s means under rule 34B(2), that sum was set off against the £1,800 payable by the respondents. The respondents were ordered to pay the claimant the net sum of £550 within 14 days of the sealed order.

• Employment Appeal Tribunal: on the papers, determined consequential costs applications following the claimant’s three appeals and ordered a net payment of £550 to him.
• Employment Tribunal: Employment Judge MacInnes had made decisions including strike-out, deposit, reconsideration and amendment decisions. Some were successfully appealed, restoring the race discrimination, notice-pay and nights-out allowance claims; other challenges failed.