Claimant successfully appeals order for ‘costs on indemnity basis’ and ‘costs of costs’ award

In Dowding v The Character Group Plc [2024] EAT 153 the employment tribunal dismissed the claimant’s whistleblowing unfair dismissal claim because it concluded that the claimant had not, in law, made protected disclosures, because the disclosures relied upon were not believed by him to have been made in the public interest (alternatively, if they were, his belief was not reasonable). Nor in any event was the claimant dismissed by reason of those disclosures. At a further costs hearing the tribunal awarded the respondent costs, in a capped amount, subject to detailed assessment on the indemnity basis. The respondent was also awarded its costs in respect of the costs hearing, which it had limited to the maximum that could be summarily awarded, of £20,000.

On appeal, the EAT allowed the appeal against the costs award in two respects:

• under the Employment Tribunal Rules of Procedure 2013, the tribunal does have the power to direct that a detailed costs assessment be on the indemnity basis; but the tribunal had not shown whether, or if so, why, it had decided that such a direction was warranted in this case, applying the guidelines in Howman v Queen Elizabeth Hospital [2013] All ER (D) 262 (Apr);

• in respect of the ‘costs of costs’ award, the tribunal had not considered whether the sum of £20,000 was warranted having regard to the nature, gravity and effect of the conduct which gave rise to the award; or if it had considered that, it had not sufficiently explained its decision in that respect.

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Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.