The general rule is that parties to an Employment Tribunal claim should not expect to recover their costs at the end of the hearing. This is unlike the other civil courts, where costs (or a proportion thereof) are normally awarded to the winning party. According to recent ET statistics for 2011-2012, the total number of costs awards increased by almost 25% but there were still only 612 cases in which costs were awarded to one of the parties. Whilst cases are increasing, it is actually only 1 in every 100 cases that results in a costs award. There could be two explanations for this. There may be less unmeritorious cases reaching the Tribunal than some may suggest or that the judges are reluctant to award costs in inappropriate cases.
As of this summer, there are new rules on costs. The primary aim appears to have been to simplify them but the key substantive change proposes that costs orders likely to be in excess of £20,000 no longer need to be referred to the County Court for detailed assessment, but instead may be assessed by an Employment Tribunal judge. Although this may simplify and speed up the process, it remains to be seen how the Tribunal judges will deal with this. The majority of them have little experience of dealing with detailed cost applications, but presumably they will be given the appropriate training and guidance. Whether the number of cost orders made increases remains to be seen.