Introduction
The introduction of the Employment and Discrimination Tribunal
(Procedure) (Jersey) Amendment Order 2025 (Order) has significantly
altered the costs regime in the Jersey Employment Tribunal. Having
previously been a no-cost jurisdiction, the Tribunal will now be
able to award costs to either claimants or respondents where it
considers a party's conduct to have been vexatious, abusive,
disruptive or unreasonable.
The amendments under the Order bring the Jersey costs regime closer
to the equivalent UK provisions. On this basis, whilst not directly
binding, it is likely that the Jersey Employment Tribunal will look
to previous UK Tribunal decisions for guidance on how the Order is
to be interpreted.
Employers should be aware that the Order came into force on 25 July
2025 and applies to all claims, including those already in process
before the Order took effect.
Overview of the Order
Under the Order, the Tribunal may award costs, on its own
initiative or the application of a party, if it is satisfied that a
party (or their representative) has acted vexatiously, abusively,
disruptively or otherwise unreasonably either in the bringing of
proceedings or in the conduct of proceedings.
An application for costs must be made to the Tribunal within 21
days of the conclusion of proceedings, either orally or in writing.
The Tribunal will not usually convene a separate hearing for a
costs application, but will determine the application based on the
oral and written submissions.
If an application is successful, the Tribunal can award costs on an
indemnity basis up to a maximum of £10,000. In determining
the appropriate award, the Tribunal will have regard to the ability
of the party concerned to pay. UK case law suggests that this is
likely to include factors such as whether the claimant is a
self-represented litigant in person who may have less financial
means to make a payment.
When can costs be awarded?
Non-statutory guidance issued by the Tribunal sets out a
non-exhaustive list of factors which may be taken into account when
determining whether costs will be awarded.
These include:
- how far the proceedings have progressed – a claim that is
withdrawn before the first case management meeting, or shortly
thereafter, is unlikely to result in a costs order
- whether a party fails to turn up to a hearing without good
excuse
- if a party continues with a claim or response or parts thereof
that are hopeless – note that the Tribunal may make a limited
costs order where an otherwise successful party is ordered to pay
the costs associated with aspects of the case found to be
hopeless
- a party failing to accept an offer of settlement that is more
than or close to an award made by the Tribunal
- a party sending abusive correspondence to the other party or engaging in correspondence that is irrelevant to the issues in dispute
UK regime
As mentioned, the wording of the Order's provisions closely
aligns with Rule 74 of the UK's Employment Tribunal Procedure
Rules. In the UK, the Tribunal must consider making a costs order
where a party has acted vexatiously, abusively, disruptively or
otherwise unreasonably in either the bringing of the proceedings or
the way in which proceedings have been conducted.
Although the UK costs regime is well established, costs in the UK
Employment Tribunal have generally been viewed as "the
exception rather than the rule". This is particularly the case
in the employment context given that, that unlike in the civil
courts, costs do not "follow the event", i.e. the losing
party will pay legal costs for both sides. On average, costs are
only awarded in approximately 0.2% of all cases issued in the UK
tribunal.
In line with this more cautious approach, UK case law has confirmed
that the Tribunal should first consider whether it has the
discretion to assess the manner in which proceedings have been
conducted before determining whether conduct has in fact met the
threshold of having been vexatious, abusive, disruptive or
unreasonable.
Breaking the test down, "vexatious" conduct has typically
been held to be a very high bar to meet. The case of Marler Ltd v
Robertson, for example, confirmed that conduct is only vexatious
"if an employee brings a hopeless claim not with any
expectation of recovering compensation but out of spite to harass
his employers or for some other improper
motive".1
In practice, therefore, parties have been more likely to rely on
meeting the wider "unreasonable" conduct threshold,
particularly given that the Tribunal has confirmed that it should
not be taken to be the equivalent of vexatious.2 One
common example of unreasonable conduct is dishonesty, including
lying to the tribunal. As a result, employers should be alive to
the risks around fabricating key pieces of evidence in line with
the Tribunal's traditionally strong approach to those parties
who make false allegations. Unreasonable conduct could also extend
to failure to comply with the Tribunal's orders, non-attendance
at hearings and the sharing of an inadequate or incomplete trial
bundle.
Impact
The Order is a considerable departure from the previous
rationale of the Tribunal being upheld as a "no-cost"
jurisdiction so that it could be as accessible as possible for
litigants in person to bring proceedings "without fear of
severe financial penalty in the event that they
fail".3 From a policy perspective, however, the
Order may be welcomed by employers in that it could address
instances of employees bringing proceedings from a tactical point
of view in order to pressurise settlement discussions or push for
reinstatement.
That said, employers need to be conscious of the limited remit of
the Order, particularly given the increased compensation for
discrimination claims, breaches of an employee's contractual
rights and statutory employment rights which have already been
introduced under the Employment and Discrimination (Jersey)
Amendment Law 2025, as well as the fact that the maximum award of
costs is only £10,000.
Footnotes
1 Marler Ltd v Robertson [1974] ICR 72
2 Dyer v Secretary of State for Employment [1983] 10 WLUK 154 (21 October 1983)
3 Downer v LV Care Group and Ors [2023] TRE 04
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
