Readers will recall that earlier this year we reported the EAT’s decision in Goldwater and others v Sellafield Ltd, where the EAT interpreted the reference to the recovery of “any [tribunal] fee paid by the appellant”, in the EAT rules, as preventing a costs order being made where an appeal has succeeded, but the appellant's fee had been paid on their behalf by a trade union. In this case, a provision in the GMB rulebook indicated that members will not, provided they follow the rules, have to pay any legal costs.  HH Judge Shanks accepted that this provision must negate any implied obligation there may have been on members to indemnify the union in respect of the fees paid on their behalf and it was clear that the Appellants had in fact paid nothing to the GMB by way of reimbursement.

In Legge and others v Prestige Homecare Ltd (in administration) and others ET/2401324/14, however, an employment tribunal has made a costs award in favour of a group of claimants whose fees had been paid by their union. The tribunal held that the claimants' union was acting as their agent in making the payments, and that the fees were, therefore, “paid by” the claimants for the purposes of making a costs order under the ET rules. In this case, the claimants were represented in the tribunal by solicitors appointed by their trade union, UNISON. When their claim form was submitted, the claimants' solicitor paid the £1,000 issue fee. The claimants each entered into a loan agreement with UNISON to advance a sum to them equal to the tribunal fees. The money advanced under the agreement was repayable by each claimant in the event that their claim, or part of it, succeeded in the tribunal.

The facts in this tribunal case can be distinguished from Goldwater, i.e. in Goldwater, the EAT ruled that a no fee-costs award applies where the successful party has not paid, or is not liable to pay, any fee at all. The tribunal’s decision in Legge means that a successful party may be able to recover the costs of fees where they have been paid by a union, on the condition that they will be repaid if the claim succeeds. However, the tribunal’s decision is not binding.

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