Recovery position

The award of costs is governed by r 40 of the Employment Tribunals Rules of Procedure, which provide a discretion to award costs where “the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived”. The rule is widely drawn and, since its amendment on 6 April 2012, allows a tribunal to award up to £20,000 of costs, to award such sum as the parties agree, or to send the costs to the county court to be assessed if the likely sum is higher than the upper limit it is allowed to award. By r 41(2), the tribunal may (but does not have to) have regard to the paying party’s “ability to pay”, both in determining the principle,