The Employment Appeal Tribunal has held in Rogers v Dorothy Barley School UKEAT/0013/12/LA that a failure by a Respondent to warn its opponent that it will be applying for costs will make an Employment Tribunal less likely to make a costs award.
Mr Rogers was the caretaker for Dorothy Barley School and as a benefit of his employment, was provided with on-site accommodation. Mr Rogers claimed breach of contract after water bills were sent to him in error by the school. Both the Tribunal and EAT held that they did not have jurisdiction to hear the claim because Mr Rogers was still employed by the school (which is a bar to breach of contract claims in the Tribunal). The school made an application for costs against Mr Rogers because his appeal was misconceived. The EAT did not award costs against Mr Rogers because the school, despite knowing for months that Mr Rogers did not understand the jurisdictional issue in the case, neither attempted to warn him that a cost application would be made if the claim continued, nor issued him with a schedule of costs in advance of the hearing.
Employers should take note of this and ensure that, if they intend to make a costs application, they put a claimant on notice as soon as possible and include as much financial detail as they can about the costs incurred. Failure to do so could result in a Tribunal rejecting an application for costs.
