In a case we reported on three weeks ago, an employee successfully appealed against a tribunal decision that documents relating to settlement discussions between him and his employer were not "without prejudice".

The EAT has now given a further judgment ordering the employer in the case to repay to the employee the EAT fees which he incurred in bringing that appeal. Following the introduction of fees in the employment tribunal and EAT last year, there is now an issue fee of £400 and a further hearing fee of £1,200 to pursue an appeal against a tribunal decision.

This decision gives an indication of some of the factors the EAT may take into account when deciding whether to order that the unsuccessful party repay the successful party's fees, as it has power to do under the Employment Appeal Tribunal Rules. It did not matter that the claimant here was appealing an interlocutory decision rather than a decision on the merits of the case. Although the claimant was found not to have "conducted the litigation in a helpful or co-operative way", that was not a relevant factor because the claimant's conduct had not made "any significant difference to the conduct of the appeal". Given that the employer had the means to pay and had substantially lost the appeal, it was right to order costs of £1,600 against the employer, to be paid if the claimant's application for remission was unsuccessful.

The decision may also provide some insight into how tribunals will exercise their discretion to make a costs order in respect of tribunal fees incurred in pursuing a claim in favour of a successful claimant.