Understanding that employment tribunal costs can be awarded is one thing. Knowing how to apply for costs, and what the tribunal process actually involves, is quite another. For many solicitors and litigants in person, the procedural side of a costs application is where things can go wrong, particularly for those less familiar with employment law procedure.

This guide sets out the key steps involved in making a costs application in employment tribunal proceedings, what evidence you need, and how the tribunal approaches the decision.

What Type of Order Are You Applying For?

Before making a costs application, the first question is which type of order is appropriate.

A costs order is available where the receiving party has been legally represented, whether bringing or defending a claim. It covers legal fees incurred, including solicitor and counsel fees, and can be assessed summarily by the tribunal for amounts up to £20,000 or referred to detailed assessment in the county court for higher sums.

A preparation time order applies where the receiving party has not been legally represented. Rather than covering legal costs, it compensates for time spent on preparatory work calculated at a prescribed hourly rate. A costs order and a preparation time order cannot both be awarded in favour of the same party in the same proceedings.

A wasted costs order is directed at a legal representative personally, rather than the party they represent. This arises where the representative’s conduct – not the party’s – has caused unnecessary expense to be incurred.

Getting this distinction from the outset matters. An application made under the wrong provision wastes tribunal time and weakens your position.

The Grounds for Making a Costs Application

The Employment Tribunal Rules 2013 set out the circumstances in which the tribunal can make a costs award. An application is most commonly made where the other party:

• Has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conduct of proceedings
• Pursued an employment tribunal claim or response that had no reasonable prospect of success
• Has been in breach of any order or practice direction made by the tribunal
• Caused a tribunal hearing to be postponed or adjourned through their own application

It is worth emphasising that simply losing a claim or response, for example, an unfair dismissal claim that was arguable but ultimately unsuccessful, does not, on its own, justify a costs application.

When Should You Make the Application

A costs application must be supported by sufficient evidence to satisfy the tribunal on two levels: first, that the conduct or lack of prospect of success meets the relevant threshold; and second, the quantum of the costs claimed or the time spent.

For a costs order, you will need a schedule of legal costs incurred, broken down by phase of the proceedings and by fee earner. Include the hourly rate applied, the time spent, and the work carried out. Where counsel has been instructed, their fees should be included with appropriate supporting information.

For a preparation time order, you will need a clear account of the preparatory work carried out, who undertook it, and how long it took. The tribunal will assess what time was reasonably and necessarily spent – vague or unsupported time estimates are unlikely to be accepted in full.

In both cases, it also helps to maintain a clear contemporaneous record throughout the proceedings of conduct you consider unreasonable, particularly where it relates to how the other party has conducted an existing claim. Witness statements from those present at relevant hearings, copies of correspondence, and transcripts of tribunal orders breaches are all useful supporting materials.

How Does the Tribunal Decide?

Once an application is made, the tribunal will consider whether the grounds are established and, if so, what order to make. The process typically involves:

Stage one – Is the threshold met? The tribunal assesses whether the conduct or circumstances satisfy the grounds for a costs award under Rule 76. Where this is disputed, the tribunal may hear argument from both sides before deciding.

Stage two – What is the appropriate amount? The tribunal considers the quantum of the application. For costs orders, this may involve a summary assessment at the hearings or a referral for detailed assessment. For preparation time orders, the tribunal calculates the award by reference to the number of hours it considers reasonable and the prescribed hourly rate for that year.

Stage three – Ability to pay. Before making any order, the tribunal must have regard to the paying party’s ability to pay. The paying party may raise this directly, and the tribunal may reduce or decline an award where it is satisfied payment would cause genuine financial hardship.

A Note for Litigants in Person

For those navigating an employment tribunal claim without legal representation, the costs application process can feel daunting. It is worth knowing that the tribunal process is designed to be accessible – but the procedural requirements still apply. Missing the 28-day deadline, failing to quantify the time spent clearly, or making an application on insufficient grounds can all affect the outcome.

Where the amount at stake is significant, taking legal advice before making a costs application – even if you have represented yourself throughout – is worth considering. The cost of that advice may well be recoverable as part of the award if the application is successful.

How Greener Costs Can Help

At Greener Costs, we advise law firms and individuals on claiming costs in employment tribunal proceedings at every stage of the process, from identifying whether grounds for a closed application exist, to preparing the supporting schedule and advising on quantum.

Our team of qualified costs lawyers and costs draftsmen provides clear, practical advice on the employment tribunal costs process, including preparation time orders, costs order applications, and detailed assessment proceedings where required.

Get in touch today to discuss your requirements.

📞 01204 263047

✉️ info@greenercosts.co.uk

Frequently Asked Questions

How do I apply for costs in an employment tribunal?

A costs application must be made either during the proceedings or within 28 days of the judgment being sent to the parties. You will need to identify the correct type of order, establish the grounds under the Employment Tribunal Rules 2013, and provide evidence of the costs incurred or time spent.

What is the time limit for a costs application in an employment tribunal?

Applications must generally be made within 28 days of the judgment being sent to the parties. Applications made after this deadline require the tribunal’s permission and are not guaranteed to be accepted.

Can litigants in person apply for employment tribunal costs?

Yes. An unrepresented party can apply for a preparation time order rather than a costs order. The award compensates for time spent on preparatory work at a prescribed hourly rate set annually by the Secretary of State.

What evidence do I need for an employment tribunal costs application?

For a costs order, you will need a schedule of legal fees broken down by work type, fee earner, and hourly rates. For a preparation-time order, you will need a clear account of the preparatory work undertaken and the time required. Supporting evidence of the other party’s unreasonable conduct or lack of prospect of success should also be prepared.

Can the tribunal reduce a costs award based on ability to pay?

Yes. Employment tribunals must consider the paying party’s ability to pay before making an order. A costs award may be reduced or declined where the paying party demonstrates they cannot reasonably meet it.