This case in the Employment Appeal Tribunal concerns the Employment Tribunal’s discretion to award costs, particularly with reference to the paying party’s means.
The facts in Doyle v North West London Hospitals NHS Trust
Mrs Doyle (“the Appellant”) had pursued a claim for breach of contract and race discrimination or victimisation in the Employment Tribunal. She was unsuccessful and the North West London Hospitals NHS Trust (“the Respondent”) presented a schedule of costs to the Employment Tribunal amounting to £95,000. The Employment Tribunal did in fact issue an Order for the Appellant to pay the Respondent’s costs of £95,000. The Appellant appealed this decision on 2 grounds:
- The Tribunal was wrong to order that the whole of the Respondent’s costs be paid (as the Appellant’s conduct and the effects of this conduct did not warrant this); and
- The Tribunal did not properly consider the Appellant’s ability to pay the Order for costs
The law relating to costs in the Employment Tribunal
The Employment Tribunal has the power under the Employment Tribunal Rules of Procedure (2004 rules) to award costs:
- At a summary assessment in the Employment Tribunal up to the value of £10,000; or
- That the parties have agreed between themselves; or
- The whole or a specified part of the costs of the receiving party with the amount to be subject to a detailed assessment in the County Court (up to an unlimited value)
In order to exercise the power to award costs the Employment Tribunal must detail whether the paying party’s conduct has been:
- Abusive or disruptive
- Otherwise unreasonable
The Tribunal does not have to take into consideration a party’s ability to pay the amount of the Order for costs issued. However, the Employment Tribunal must act fairly in award costs and the Employment Tribunal must say why it has not had regard to the paying party’s ability to pay if it awards costs and explain why. The Tribunal also has the discretion to put a cap on costs should a detailed assessment be required.
The Employment Appeal Tribunal’s decision in Doyle v North West London Hospitals NHS Trust
The Employment Appeal Tribunal allowed the Appellant’s appeal and set aside the Employment Tribunal’s Order for costs. The Employment Appeal Tribunal considered that the Employment Tribunal had not made adequate enquiries as to the Appellant’s means and that in awarding costs it had to have regard to her ability to pay and, if so, what the appropriate order for costs would be considering her means. The Employment Appeal Tribunal therefore remitted the case to be decided on these points to the same Employment Tribunal.
Our specialist employment lawyers’ thoughts on Doyle v North West London Hospitals NHS Trust
This case highlights the necessity for the receiving party for costs in the Employment Tribunal to request that the Employment Tribunal explicitly detail that they have consider the paying party’s ability to pay any order for costs in the Employment Tribunal and state why they have not had regard to the paying party’s ability to pay if they decide to award costs. The paying party must make submissions as to their limited means and why the Employment Tribunal should not award costs (and failing that why the Employment Tribunal should cap costs at a certain level because of their means)