Look Ahead Housing and Care Ltd v Chetty and another UKEAT/0037/14 and Old v Palace Fields Primary Academy UKEAT/0085/14

Parties appealing to the EAT are required to pay £400 to lodge a claim and a further £1,200 hearing fee.

In the Chetty case the employees won their claims of race discrimination and unfair dismissal against their employer in the employment tribunal. The employer then presented an appeal to the EAT claiming that the tribunal had mistakenly omitted to take into account one of the claimants' earnings from new employment when calculating her loss. During the appeal, the parties agreed the correct figure for loss of wages. All of the other contested elements of the appeal were rejected.

The employer then applied for an order that one of the employees pay half the £400 EAT lodging fee and £1,200 hearing fee. The EAT refused to order this as the employer could have asked the tribunal to reconsider its decision or it could have sought the claimant's agreement directly on this uncontested point. The EAT then gave guidance on this issue:

  • Firstly "and most obviously" if the party who brings an appeal fails on every point then they should not recover their appeal fees.
  • Where an appeal is partially successful the EAT will consider "whether it was necessary to incur the expense in order to bring the appeal" or whether it could have been avoided by the appellant taking reasonable steps.

A similar approach was taken by a different EAT in the Palace Fields Primary Academy case that even if the party who brings an appeal is successful, there is no presumption that they can recover either the issue or hearing fee from an unsuccessful party.

In this case the claimant employee was a teacher who had been dismissed for gross misconduct after being accused of encouraging the bullying of one of her pupils.  The employment tribunal found the dismissal was fair. The employee appealed on the ground that there were procedural shortcomings by the employer as to whether there had been a reasonable investigation in terms of failure to disclose witness statements or Minutes of a meeting to the Claimant, and despite being told that they would not form part of the disciplinary panel's deliberations, were considered. Neither issue was addressed by the employment tribunal. The EAT allowed the appeal and the case was remitted back to the same employment judge.

The employee applied for recovery of the total fees paid in respect of the appeal (£400 lodgement fee and £1,200 hearing free). The EAT did not make an order for recovery of the £400 issue fee and ordered only half of the £1,200 hearing fee to be repaid. Its reasoning was that it had a wide discretion as to whether to order recovery of fees and its decision in this regard was an attempt "to do justice between the parties". The Claimant had only been "partially successful" because although the appeal had been allowed, the matter had been remitted back to the same Employment Judge for further consideration. The EAT had not reversed his finding.

In both cases the EAT has made clear that where a party is only partially successful, it has a wide discretion as to whether and how to treat applications for recovery of fees.