‘Pro bono costs’ now claimable in the Employment Tribunal

Although awards of costs are rare in Employment Tribunal proceedings, it has always been a been a source of frustration that awards could not be made where a party has received legal representation at no cost to themselves.  In particular, this affected the dynamics of litigation where the other side, normally the employer, was to all intents and purposes immune from an adverse costs order.

In proceedings in the County Court and the High Court, this issue was addressed by s.194 of the Legal Services Act 2007 which gave judges the power to make an award of costs broadly in accordance with the usual civil costs regime, even where the ‘receiving party’ has incurred no costs because they were represented at some stage by ‘a legal representative acting free of charge’.  The costs order is made payable to the Access to Justice Foundation, which distributes the funds to legal charities.  The title ‘pro bono costs order’ is somewhat of a misnomer.  Such an order can be made even if the legal representative is being paid, for example as an employed solicitor in a law centre, so long as the client has been represented free of charge.

From 28 June 2022, s.194A of the Legal Services Act 2007 comes into force (having been inserted by the Judicial Review and Courts Act 2022) extending the same powers to various tribunal proceedings including cases in the Employment Tribunal and the Employment Appeal Tribunal.

This means that:

  1. If an Employment Tribunal could make an award of costs under rule 76 of the Employment Tribunal Rules of Procedure 2017, it can now make such an order in favour of the Access to Justice Foundation even if the receiving party was legally represented without charge or by way of legal aid;
  2. The order can be paid in respect of those parts of the proceedings when the receiving party was represented free of charge; and,
  3. This applies even if the receiving party was unrepresented or had paid-for representation during other parts of the proceedings.
  4. It is therefore possible for a tribunal to make orders for pro bono costs in respect of those parts of the proceedings when the receiving party received free representation and to also make either a regular costs order or a preparation time order (but not both, see rule 75(3)) in respect of other parts of the proceedings.