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An Employment Tribunal in the United Kingdom has ordered a claimant, herself a qualified solicitor, to pay £7,000 towards her former employer’s legal costs after finding that she pursued a disability discrimination claim which had no reasonable prospect of success and continued the litigation unreasonably through to a final hearing.
In a decision issued on 28 May 2026, Employment Judge Shepherd held that while the claimant’s decision to maintain the disability discrimination allegations in the face of mounting evidential difficulties crossed the threshold of unreasonable conduct for the purposes of the tribunal’s costs jurisdiction.
Background of Case
The dispute arose from employment-related claims brought by Ms Stewart against Harris Solicitors Limited, including allegations of disability discrimination and unpaid holiday pay.
Although the discrimination claim proceeded to a full hearing, the holiday pay element was ultimately agreed between the parties and entered as judgment by consent.
Following the conclusion of the substantive proceedings, the respondent applied for a costs order, arguing that the claimant had been repeatedly warned that her case lacked merit and that she nevertheless persisted, thereby generating avoidable litigation costs.
The claimant, who represented herself despite being legally qualified, maintained that she believed her claim had reasonable prospects of success. She also relied on earlier case management observations, including references to the inappropriateness of a deposit order, as reinforcing her view that the claim remained arguable.
The law on costs in Employment Cases in the UK
The tribunal emphasised that costs orders in Employment Tribunal proceedings remain exceptional and are not governed by the “loser pays” principle typically applied in the civil courts.
Under Rule 74 of the Employment Tribunal Procedure Rules 2024, a costs order may be made where a party has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the conduct of proceedings, or where a claim had no reasonable prospect of success. The tribunal is required to consider costs where such thresholds are engaged but retains a discretion as to whether an order is just and proportionate.
The tribunal also reiterated established appellate guidance, including
Further reliance was placed on authorities such as Doyle v North West London Hospitals NHS Trust, which emphasise that costs discretion must be exercised judicially and with full regard to all relevant circumstances, and Yerraklava v Barnsley MBC, which requires tribunals to assess the nature, gravity, and effect of any unreasonable conduct in the proceedings as a whole.
The judgment also reflected the balancing approach articulated in McPherson v BNP Paribas, where appellate courts cautioned against discouraging early withdrawal of weak claims while also recognising the need to deter speculative or persistently unmeritorious litigation.
Tribunal’s assessment of conduct
Employment Judge Shepherd found that the claimant’s disability discrimination claim ultimately lacked reasonable prospects of success and that her decision to pursue it through to a full hearing was unreasonable in all the circumstances.
The tribunal noted that the claimant had continued with the proceedings despite indications that aspects of her case were not sustainable and despite the evolution of her own position during the litigation process.
However, the tribunal drew a clear distinction between unreasonableness and vexatious conduct. It expressly rejected the respondent’s submission that the claim had been pursued vexatiously, accepting instead that the claimant had acted under a genuine, albeit mistaken, belief in the merits of her case.
In a notable characterisation of her conduct, the tribunal described her approach as “unreasonable, naïve and possibly foolish, but not vexatious,” taking into account her reliance on earlier procedural observations and the absence of any deliberate abuse of process.
The tribunal also acknowledged that discrimination claims are often highly fact-sensitive and may require oral evidence before their merits can be properly assessed, which can complicate early resolution.
The tribunal declined to award the respondent its full costs, noting that the claimant had partially succeeded on her holiday pay claim and that the respondent had used its own in-house solicitors. It therefore ordered Ms Stewart to pay £7,000 as a contribution towards the respondent’s costs.
Implications
The ruling reinforces the Tribunal’s established position that costs orders remain the exception rather than the norm, even where a claim ultimately fails.
However, it also illustrates the circumstances in which a legally qualified claimant may still face financial consequences for pursuing litigation beyond the point at which its evidential foundation has significantly weakened.
Doctrinally, the judgment underscores the tribunal’s continued application of a structured proportionality analysis in costs applications, which requires an assessment of conduct, prospects of success, and overall justice of the case rather than a strict “winner takes costs” approach.
At a practical level, the decision signals that while employment tribunals remain protective of access to justice, that protection does not extend to insulating parties from costs exposure where continued litigation is found to be objectively unreasonable.
Source: Law Gazette