Some unions seek to assist their members in pursuing tribunal claims by offering to pay the fees involved. Some pay the fees directly and others do so by advancing the fees to the members in the form of a loan who then pay the fees themselves, and the members then repay to the union if the fees are recovered. If it is the former, the question then is whether fees can be reimbursed in successful cases? The answer is ‘no’ where an employee or worker is successful in an appeal to the EAT according to His Honour Judge Shanks in Goldwater v Sellafield Ltd.

Following a successful appeal, the Appellants’ solicitor applied for a costs order of £1,600, i.e. the £400 issue fee and the £1,200 hearing fee. Judge Shanks refused because Rule 34A (2A) of the EAT rules provides that “If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying that the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor.” In this case the GMB union had paid the fees in question. The plain fact was that the Appellants had paid no fees at all and as Rule 34A (2A) relates to any fee paid by the appellant then no costs order could be made.  

It appears that the same principle may also apply to tribunal fees as Rule 76(4) of the ET Rules states that a costs order may be made ‘where a party has paid a tribunal fee’. Therefore if a union has paid employment tribunal fees directly and fees have not been paid by an actual ‘party’ to the claim, then it seems probable that no costs order can be made to reimburse the fees involved.

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