J Mayanja v City of Bradford Metropolitan District Council

An Employment Appeal Tribunal costs order under rule 34A requires a two-stage decision. The Tribunal must first find that proceedings were unnecessary, improper, vexatious or misconceived, or that there was unreasonable delay or other unreasonable conduct. It must then decide whether to exercise its discretion to award costs.

Costs do not follow the event in the EAT. A successful appeal does not itself establish threshold conduct by the respondent. An arguable response to an appeal, including a contention about disclosure responsibility, is not shown to be misconceived or unreasonable merely because the appeal succeeds.

The claimant had appealed Employment Tribunal decisions dismissing his claims arising from the respondent's decision not to progress his candidature, and awarding the respondent £2,000 costs. After the claimant discovered an email apparently offering him the post, the EAT allowed that appeal, set aside the liability and costs judgments, and remitted the claims to a differently constituted Tribunal: [2025] EAT 160.

The claimant then applied for his costs of the successful appeal. He alleged that the respondent's response was misconceived and unreasonably defended, including by reference to the undisclosed email. The central issue was whether the respondent had engaged in threshold conduct under rule 34A of the Employment Appeal Tribunal Rules 1993 such that an EAT costs order could be made.

1. The costs application was refused. Costs do not follow the event in the EAT, which is generally a costs-free jurisdiction. Under rule 34A, the EAT must first identify threshold conduct and must then separately decide whether to exercise its discretion to award costs.
2. The claimant's success in the substantive appeal did not itself establish that the respondent's response was unnecessary, improper, vexatious, misconceived, or unreasonably conducted. The question whether the underlying claim is meritorious, and whether the email was deliberately concealed, remains for the remitted Employment Tribunal.
3. The respondent had not accepted liability for failing to disclose the email and there was no current finding that its manager deliberately concealed it or lied on oath. Although the earlier appeal held that the case-management order placed primary responsibility for the bundle on the respondent, its contention that the claimant also had a responsibility to disclose the email was arguable.
4. Accordingly, the respondent's defence to the appeal was not bound to fail and did not amount to an abuse of process. Threshold conduct permitting a costs order was not shown. The application was refused.

• Employment Appeal Tribunal: In this costs judgment, the EAT refused the claimant's application for costs following his successful substantive appeal.
• Employment Appeal Tribunal: In [2025] EAT 160, the EAT allowed the claimant's appeal, set aside the Employment Tribunal's liability and costs judgments, and remitted the claims to a differently constituted Tribunal.
• Employment Tribunal: The Tribunal dismissed the claimant's contractual and discrimination-related claims in a liability judgment sent on 15 November 2022. It awarded the respondent £2,000 costs on 12 April 2023. A reconsideration judgment was sent on 17 August 2023.