Think the Employment Tribunal Is ‘No-Cost’ forum – Think Again.

Why Unreasonable Behaviour Can Lead to Eye-Watering Costs – A Lesson from a recent EAT case 

Historically, it has been assumed that the Employment Tribunal is a “no-cost” zone – win or lose, each party pays their own way. But that’s not always true. As the recent case of Willis v GWB Harthills LLP [2025] EAT 7 shows, unreasonable conduct in litigation can lead to serious cost consequences – even six-figure ones.

What Happened in Willis?

The Claimant was a solicitor and former managing partner at a law firm (the Respondent). After being diagnosed with cancer, he brought two separate claims against his employer. The first was settled, but the second went all the way to trial – and was dismissed.

Worse for the Claimant, the Tribunal made a costs order against him of up to £210,000 after finding that he had given dishonest evidence in an attempt to mislead the court.

When Can Tribunals Award Costs?

The Employment Tribunal can award costs but only where certain thresholds are met. 

Here’s how it works:

1. Stage 1 – Unreasonable Conduct: Did a party behave so poorly that it justifies a costs order?
2. Stage 2 – Tribunal’s Discretion: Should a costs order be made, even if the threshold is met?
3. Stage 3 – How Much?: If so, how much should be awarded and can the party afford it?

What happened in Willis?

In this case, the Tribunal found the Claimant had deliberately lied, not due to mental ill health or confusion, but to gain an outcome he knew he wasn’t entitled to. The dishonesty was seen as even more serious because the Claimant was a qualified solicitor.

Can Disability Shield a Party from Costs?

The Tribunal didn’t think so. While it accepted the Claimant was disabled due to cancer and depression, that wasn’t enough to excuse or justify his conduct. The message is clear: disability doesn’t create a blanket exemption from costs where there’s been serious wrongdoing.

What About the Claimant’s Finances?

The Claimant argued he couldn’t afford to pay, but that didn’t get him off the hook. The EAT held that tribunals can take a “reasonably rosy” view of future finances, including capital assets such as jointly owned property. So, even if someone isn’t flush with cash today, potential future resources count.

No strike-out? Doesn’t matter

The Claimant also argued that because the Respondents didn’t apply for a strike-out or deposit order earlier in the case, they shouldn’t be allowed to seek costs later. The Tribunal rejected this. There’s no requirement to apply for strike-out or a deposit order before asking for costs. Costs are a separate question, based on conduct, not on whether other procedural tools were used earlier in the case.

Key Takeaways for Employers and Claimants

• Costs orders are rare but real. Don’t assume the Tribunal is cost-free.
• Bad behaviour matters. Dishonesty, wasting time, or pursuing hopeless claims can all trigger cost awards.
• No immunity for illness. Even serious health conditions won’t shield a party from costs if their conduct is unreasonable.
• Future assets count. The Tribunal can look at both current and future means when deciding whether someone can afford to pay.
• Strike-outs and deposit orders are not a prerequisite. You don’t need to have applied for these to later apply for costs. 

Final Thought

Litigants, whether employers or employees, should treat the Tribunal process seriously. The Tribunal will generally be fair and accessible. But where someone abuses the process, particularly by being dishonest, the consequences can be costly.