Employment Law Update – October 2013 (DKLM LLP)

Employment Law Update – October 2013

Following on from the recent costs litigation between Lord Sugar’s company and 2010 Apprentice winner Stella English, this employment law update includes a Q&A about the costs regime in the Employment Tribunal.

1. National Minimum Wage increased to £6.31 per hour

From 1 October 2013 the standard adult National Minimum Wage (NMW) rates increased to £6.31.

2. Q&A – Costs in the Employment Tribunal

The costs regime in the Employment Tribunal is markedly different from the costs regime in the civil courts.

  • Do costs follow the event in the Employment Tribunal?

No. If a party is successful in defending (or bringing) a claim, the Employment Tribunal will not necessarily make a costs order that the unsuccessful party pays the winning party’s costs.

  • Who decides if a costs order should be made?

The Employment Tribunal (Constitution and Rules of Procedure) Regulations set out the criterion for when an Employment Tribunal Judge must, or may, make a costs order.

  • In what type of situation might a costs order be made?

The Tribunal may make a costs order, and must consider whether it should exercise its discretion to do so, where it finds that a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party (the specific grounds); or where a party (or their representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of the proceedings; or any claim (or response) that had no reasonable prospect of success (the general discretionary grounds).

  • Does the Employment Tribunal have to consider the paying party’s ability to pay?

When considering either whether to make a costs order, or the amount of the costs order, the Tribunal may have regard to the paying party’s ability to pay.

  • Can an Employment Tribunal Judge make a costs order against a Claimant who is unemployed?

Yes they can. Just because a person is unemployed does not necessarily mean that the Employment Tribunal Judge will not make a costs order. Last year the Employment Appeal Tribunal upheld a decision to make a costs award of c. £87,000 against a Claimant who was both unemployed and unrepresented. However, in that case, decided under the old rules, the Claimant’s claims were misconceived.

3. Financial penalties for losing employers

It has recently been announced that a highly controversial provision of the Enterprise and Regulatory Reform Act (ERRA 2013), will come into force in April 2014.

Section 16 of the ERRA will give Employment Tribunals the power to fine an employer up to 50% of any award (with a cap of £5,000) if they lose and their case has “aggravating features“.  Any fine will be halved if paid within 21 days. The money goes straight to the government, rather than the Claimant.

4. Abolition of discrimination questionnaires

The much derided discrimination questionnaires will be abolished from 6 April 2014. It is hoped that this will reduce some of the initial costs for employers defending discrimination claims.

Contact us

For further information on Employment Law please contact Philip Henson, Partner and Head of Employment Lawp.henson@dklm.co.uk / direct line: 020 7549 7872

If you require any Immigration law advice please contact Fei Yang, Immigration Solicitor f.yang@dklm.co.uk / direct line: 020 7549 7451

DKLM LLP City House, 3, Cranwood Street, London, EC1V 9PE (DX: 36601 Finsbury)

Tel: 020 7549 7888


Disclaimer: This update is published by DKLM LLP. Please note that the information and any commentary on the law contained in this update is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. DKLM LLP accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of DKLM LLP. © DKLM LLP.

DKLM LLP is a limited liability partnership registered in England and Wales. Authorised and regulated by the Solicitors Regulation Authority.


Leave a comment

Filed under employment law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s