Employment Appeal Tribunal Overturns Costs Order in NHS Trust Case
The Employment Appeal Tribunal has set aside a costs order, ruling that the original tribunal failed to properly assess the claimant's financial means.
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The Employment Appeal Tribunal (EAT) has overturned a significant costs order issued against a claimant, ruling that the original Employment Tribunal failed to follow correct legal procedures when assessing her financial situation and the proportionality of the costs awarded.
Background to the Appeal
The case involved Ms Lavinia Day, a former clinical support worker at the East and North Hertfordshire NHS Trust. After the tribunal dismissed her claim concerning statutory rights to be accompanied at sickness absence meetings, the Trust successfully applied for costs. The tribunal ordered the claimant to pay £14,123.39, representing the full amount of costs claimed.
Failure to Assess Means and Proportionality
On appeal, Deputy Judge Andrew Burns KC identified critical errors in the tribunal's decision-making process. The primary issue concerned the assessment of the claimant's ability to pay under Rule 84 of the Employment Tribunal Rules 2013.
The original tribunal had focused heavily on the combined income of the claimant's household, including her husband's earnings. The EAT ruled this approach flawed. Relying on legal precedents, the judge noted that simply because a claimant is financially dependent on a spouse does not mean they have full access to that income for the purpose of paying a legal costs order. The tribunal failed to examine the financial arrangements through the proper statutory lens to determine what share of those resources was actually available to the claimant.
Lack of Summary Assessment
Furthermore, the EAT found that the tribunal had failed to carry out a required summary assessment of the costs. The tribunal awarded the full sum requested by the respondent without scrutinising the schedule to ensure the costs were reasonable and proportionate. The EAT emphasised that even in a summary process, tribunals must demonstrate that they have applied the principles of reasonableness and proportionality rather than simply awarding the total sum claimed.
Conclusion
Given the fundamental nature of these errors, the EAT concluded that the existing tribunal could not be expected to rectify the assessment. Consequently, the case has been remitted to a fresh tribunal, which will be tasked with properly assessing the claimant's ability to pay and determining a reasonable and proportionate level of costs.
Read the entire judgment here: Day v E&N Herts NHS Trust [2026] EAT 110
