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A recent Employment Appeal Tribunal (EAT) decision has held that full costs should not be awarded automatically if a claim is lost following the payment of a deposit.
In Oni v Unison, the claimant, Mr Oni, had unsuccessfully pursued a number of claims, which had been made the subject of a deposit order, against the respondent. The employment tribunal therefore ordered Mr Oni to pay the whole of the respondent's costs of the action, in view of the fact that his conduct in persisting with the claims had been unreasonable.
On appeal however, the EAT found that the tribunal has failed to recognise and utilise its wide discretion in making an award for costs. This discretion should still have been exercised despite the fact there was unreasonable conduct by Mr Oni in continuing the proceedings after a deposit order had been made.
The EAT held that tribunals should consider all the circumstances before making a decision on costs and not be restricted to 'only one outcome'. The wide discretion held by the tribunal meant it could choose not to make any award of costs at all, or alternatively, to make a costs award that was proportionate in all the circumstances of the case.
This case serves as a useful reminder of the tribunal's ability to exercise wide discretion when making a costs order and that an unsuccessful claim, which is subject to a deposit order, will not always result in a full costs award in favour of the opponent.