How Much Does It Cost to Bring or Defend an Appeal in the Employment Appeal Tribunal?

There are no court fees for bringing or defending an appeal in the Employment Appeal Tribunal. The costs of an appeal are primarily the legal fees for advice, drafting, and representation. If instructing a specialist barrister, the principal costs are for reviewing the Employment Tribunal's judgment and reasons, advising on prospects, drafting the Grounds of Appeal or Respondent's Answer, preparing the skeleton argument, and attending the hearing.

Costs vary significantly depending on the complexity of the case and the seniority of counsel instructed. Many barristers who specialise in Employment Appeal Tribunal work offer fixed fee arrangements for defined stages of the appeal. A short advice on prospects can often be obtained for a relatively modest fixed fee. Drafting grounds of appeal and representation at a full hearing will cost more. The total cost of an appeal from start to finish can range from a few thousand pounds for a straightforward case to significantly more for complex, multi-day hearings.

Legal Framework

No Court Fees

Since the Supreme Court's decision in R (UNISON) v Lord Chancellor [2017] UKSC 51, which struck down Employment Tribunal and Employment Appeal Tribunal fees as unlawful, there are no court fees payable for lodging or defending an appeal in the Employment Appeal Tribunal. The cost of an appeal is therefore limited to the legal costs of preparing and conducting it.

Costs Orders in the Employment Appeal Tribunal

The Employment Appeal Tribunal has power to award costs under Rule 34A of the EAT Rules 1993. Costs may be awarded where a party has acted unreasonably in bringing or conducting the appeal, or where any of the party's proceedings have been unnecessary, improper, vexatious, or misconceived. The costs jurisdiction is discretionary and the EAT applies it with caution.

The practical significance of the costs jurisdiction is that pursuing a hopeless appeal carries a financial risk. If the Employment Appeal Tribunal considers that the appeal was brought unreasonably — for example, where the grounds did not disclose any arguable error of law — it may order the unsuccessful appellant to pay the respondent's costs.

Wasted Costs Orders

The Employment Appeal Tribunal also has jurisdiction to make wasted costs orders against a party's legal representative under section 4 of the EAT Rules. A wasted costs order is made where a legal representative's conduct has been improper, unreasonable, or negligent, and has caused costs to be incurred unnecessarily. This is a separate jurisdiction from the general costs power and is directed at representatives rather than parties.

Common Errors and Misconceptions

A common misconception is that the Employment Appeal Tribunal routinely awards costs against unsuccessful parties. It does not. Costs orders remain the exception rather than the rule. The EAT recognises that most appeals are brought in good faith and that an unsuccessful appeal is not, without more, unreasonable. The costs risk arises where the appeal was hopeless or where the appellant's conduct was unreasonable.

Another error is to assume that legal costs will be irrecoverable if the appeal succeeds. If the Employment Appeal Tribunal allows the appeal and remits the case, the successful appellant will usually need to bear the costs of the appeal itself, as the EAT's costs jurisdiction is limited. However, the cost of a successful appeal should be weighed against the potential benefit of a fresh hearing.

Some parties are unaware that many barristers who specialise in Employment Appeal Tribunal work offer fixed fee arrangements. This provides costs certainty and enables parties to budget for the appeal. A fixed fee for a short advice on prospects is often the most cost-effective first step.

A further misconception is that instructing a specialist is necessarily more expensive than handling the appeal without legal representation. A specialist will focus the appeal on genuine errors of law, draft effective grounds, and conduct the hearing efficiently. The alternative — pursuing a poorly framed appeal that fails at sift and incurs further costs at a Rule 3(10) hearing — can be more expensive overall.

Parties sometimes fail to account for the costs of a remitted hearing. If the Employment Appeal Tribunal allows the appeal and remits the case to the Employment Tribunal, both parties will incur the costs of preparing for and attending a fresh hearing. The total cost of the appeal process therefore includes not only the EAT proceedings but also the potential cost of a further Employment Tribunal hearing. This total cost should be weighed against the potential benefit before deciding to appeal.

Practical Application

The most cost-effective approach is to obtain a short advice on prospects before committing to the appeal. This initial assessment determines whether there is a genuine error of law worth pursuing. If there is not, the cost of the advice is the only expenditure, and the far greater costs of a full appeal are avoided.

If the advice is favourable, the next stage is drafting the Grounds of Appeal. This is the most important piece of work in the appeal, because the quality of the grounds determines whether the appeal passes sift. Investing in specialist drafting at this stage can save significant costs later by avoiding the need for a Rule 3(10) hearing.

At the full hearing stage, the costs include preparation of a skeleton argument, preparation of the appeal bundle, and attendance at the hearing. A half-day hearing will cost less than a full-day or multi-day hearing. The complexity of the legal issues and the volume of material are the main cost drivers.

For respondents defending an appeal, the costs include reviewing the Grounds of Appeal, drafting a Respondent's Answer, preparing a skeleton argument, and attending the hearing. A respondent may also incur costs in applying for the appeal to be dismissed at the sift stage, although this is unusual.

Parties should also consider the indirect costs of an appeal. These include management time spent on instructions and preparation, the uncertainty and stress associated with ongoing litigation, and the opportunity cost of resources devoted to the appeal rather than other priorities. For employers defending appeals, the management time involved in instructing solicitors, reviewing draft documents, and attending hearings can be significant.

Where trade union support is available, the union may fund the appeal on behalf of the member. Trade union funding typically covers solicitor and counsel fees and removes the financial burden from the individual. Members should check their union's policies on funding appeals and ensure that the union's legal team is aware of the 42-day time limit.

Legal expenses insurance, which is sometimes included in household insurance policies, may also cover the costs of an Employment Appeal Tribunal appeal. Parties should check their insurance policies carefully, as coverage for appellate proceedings may be subject to specific conditions and approval processes.

Process and Timing

There are no court fees at any stage of the Employment Appeal Tribunal process. The legal costs are incurred at defined stages: advice on prospects, drafting grounds, preparing the skeleton argument, and the hearing. Fixed fee arrangements allow parties to budget for each stage separately.

If the appeal is rejected at sift and the appellant decides to pursue a Rule 3(10) hearing, there will be additional costs for preparing and attending that hearing. If the appeal proceeds to a full hearing, further costs are incurred for the skeleton argument and hearing preparation.

Any costs application must be made in accordance with the Employment Appeal Tribunal's practice direction. The EAT may summarily assess costs at the conclusion of the hearing or direct a detailed assessment.

It is also worth noting that the costs incurred in the appeal may not be recoverable from the other party even if the appeal succeeds. The Employment Appeal Tribunal's costs jurisdiction is limited and costs orders remain the exception. Parties should therefore approach the appeal on the basis that they will bear their own costs regardless of the outcome, and budget accordingly.

When to Seek Specialist Counsel

Instructing a specialist in Employment Appeal Tribunal work at the outset is the most cost-effective approach. A specialist can quickly identify whether the appeal has realistic prospects, which avoids the cost of pursuing a hopeless appeal. Where the appeal is meritorious, specialist drafting and representation maximise the chances of success, reducing the risk of further costs from failed procedural stages.

Many specialists offer a short, fixed-fee advice as a first step. This is designed to provide a clear and honest assessment of the prospects without committing the party to the full cost of an appeal.

Frequently Asked Questions