Paying costs after an employment tribunal claim
You don't have to pay any fees to make an Employment Tribunal claim.
If you lose an employment tribunal claim, there's a small chance you may have to pay your employer's costs of going to court.
This page tells you more about what costs are involved and when you may be likely to have to pay them
What are costs?
Costs are the amount of money you or your employer spent on bringing the case to a tribunal. If you lose the claim, the judge could order you to pay your employer's costs. If you win your claim, the judge could order your employer to pay your costs. These may include:
- costs of getting the opinion of an expert witness
- legal fees for helping to prepare the claim
- costs for time you or an unpaid adviser spent on preparing the claim.
When do you have to pay costs?
It's unlikely you'll have to pay costs if you've properly followed the processes for making a claim. A judge will be more likely to order either you or your employer to pay costs if they think you have lied or misled the tribunal or that you haven't cooperated at every stage.
To avoid having to pay costs, it's important to prepare your claim carefully.
Make sure you have a reasonable claim
There must be good grounds for arguing your case. Check your claim satisfies the legal tests and that you have evidence to support it.
Make sure you disclose all the facts
Don't hold back any information about your claim which could affect its outcome. If this only comes out at the hearing, the judge may order you to pay costs.
Tell the truth
If you lie at the hearing and are found out, you may be ordered to pay costs.
The judge may ask you to do certain things before the hearing, such as gather evidence or disclose certain documents. These are known as directions. If you don't cooperate and do what you've been asked, you may be ordered to pay costs.
Attend the tribunal hearing
If you don't turn up to the tribunal hearing, a judgment may be made anyway, and you could be ordered to pay costs.
Give notice before you withdraw a case
If you decide you want to drop the case and withdraw your claim, try to give as much notice as possible. If you withdraw at the last minute, it could mean you have to pay costs.
How much would you have to pay in costs?
The rules on tribunal costs remove the cap on the amount judges can order to be paid. You may therefore get a letter from your employer when they respond to your claim saying that you may have to pay unlimited costs.
However, the risk of this happening is very small if your claim has good grounds for succeeding and you've behaved reasonably at all times.
Costs you can ask to be paid to you
If you prepare for the claim yourself, or you use the help of an unpaid person or adviser to put the claim together, the judge has the power to make a preparation time order. These are the costs for the time spent preparing for the case.
The amount you can claim is worked out as the number of hours you've spent preparing the case multiplied by £40 an hour. So if you spent ten hours preparing your case, you could ask for costs of 10 x £40, which is £400.
You should make this figure part of the claim you present to your employer. You can also use the amount to try and persuade your employer to settle.
It's also worth asking for a preparation time order if you think:
- your employer's defence is hopeless
- your employer is behaving unreasonably by not disclosing documents or complying with other directions from the judge
How to ask for a preparation time order
If you want to apply for a preparation time order, warn your employer you intend to ask for one before the hearing. At the hearing you will need to write down how many hours you or an unpaid adviser has spent on the case and multiply it by the hourly rate. You'll also need to give the reasons why you're asking for one.
The judge will decide whether to make an award based on the information you give them.