What if a Claimant cannot pay a costs award?  This is of course a mitigating factor against awarding a costs award and something the Judge may consider.  However, in the case of Chadburn v Doncaster and Bassetlaw Hospital NHS Foundation Trust and another the EAT held that there was no reason why the question as to affordability had to be decided at the moment the order is made. Affordability is only one criterion for the exercise of discretion and the Tribunal was not obliged to precisely work out what the Claimant could afford and it could not be said that the Tribunal failed to take the Claimant’s debt into account.

In this case the Tribunal found that the Claimant had invented race discrimination allegations as a means of getting over the jurisdictional issues of her claim in the employment tribunal.  The Tribunal felt that this was unreasonable conduct and this triggered a costs award. The main point of mitigation for the Claimant is that she could not afford to pay and had debts of around £600.00.  However, the Tribunal took into account that the Claimant was 39 and had plenty of working years ahead of her so that her financial position was likely to improve.  The Tribunal made an order that she repay £10,000 of costs to the trust.  She appealed saying that the decision was perverse.

Perhaps a reminder to both sides of the huge amount of discretion a Tribunal has as to whether to award costs or not even if the test is met.  Costs are still only awarded in a fraction of cases before the Tribunal.