W Huntley v Siemens Healthcare Ltd

For costs under Rule 76(1)(b), a tribunal may assess whether a claim or response had no reasonable prospect of success at a stage after proceedings began. The relevant assessment remains retrospective: it asks whether prospects had ceased at the identified earlier point, rather than whether they exist when the costs application is determined.

A costs decision requires a staged approach. The tribunal must first find that a Rule 76 threshold is met, then decide whether to award costs in its discretion, and then determine the appropriate amount. The absence of a strike-out application may be relevant but is not determinative. Reasons must be read fairly and as a whole.

The claimant, a field service engineer, brought disability discrimination and protected-disclosure complaints against his employer. Following his dismissal, he also advanced unfair dismissal and other claims.

The Employment Tribunal heard the liability case in April and November 2022. It dismissed the remaining claims on 25 November 2022. It later ordered the claimant to pay £7,500 towards the respondent’s counsel’s fees for the November hearing. The order was based on findings that the relevant claims had no reasonable prospect of success by that stage and that continuing them was unreasonable.

The claimant appealed the costs order. The central issue was whether Rule 76(1)(b) permitted an assessment of reasonable prospects at a point after the proceedings began, and whether the Tribunal had correctly applied the costs principles.

1. Appeal dismissed. The Employment Tribunal made no error of law in awarding £7,500 costs.

2. Rule 76(1) of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 requires a staged analysis. The tribunal must first determine whether a threshold in Rule 76(1)(a) or (b) is met. If it is, the tribunal must separately exercise its discretion whether to make an order. It must then determine the amount, taking account of relevant circumstances.

3. For Rule 76(1)(b), the word “had” requires a retrospective assessment at the relevant earlier time. It does not confine that time to the commencement of proceedings. A claim or response may initially have reasonable prospects but cease to have them after evidence or other developments emerge. A tribunal may therefore award the costs incurred from that later point.

4. The Tribunal had adequately found both threshold bases: the relevant claims had no reasonable prospect of success by the November hearing, and it was unreasonable to continue them after the Tribunal’s warnings and the respondent’s costs-warning letter. Its reasons, read fairly with its liability judgment and the costs application, sufficiently identified the fundamental defects in the claims.

5. The respondent’s failure to seek strike-out was not an answer to the costs application. It was potentially relevant, but the Tribunal was entitled to attach it no significant weight on these facts. The Tribunal had also considered the claimant’s earlier self-representation, access to advice, and the respondent’s burden to prove the reason for dismissal.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s costs order of 27 November 2023 dismissed: [2025] EAT 152.
• Employment Tribunal (Watford): dismissed the claimant’s remaining merits claims on 25 November 2022, then ordered him to pay £7,500 costs on 27 November 2023.