The Jersey Employment and Discrimination Tribunal's new costs regime: Key changes now in force

Introduction 

The introduction of the Employment and Discrimination Tribunal (Procedure) (Jersey) Amendment Order 2025 (Order) has significantly altered the costs regime in the Jersey Employment Tribunal. Having previously been a no-cost jurisdiction, the Tribunal will now be able to award costs to either claimants or respondents where it considers a party's conduct to have been vexatious, abusive, disruptive or unreasonable. 

The amendments under the Order bring the Jersey costs regime closer to the equivalent UK provisions. On this basis, whilst not directly binding, it is likely that the Jersey Employment Tribunal will look to previous UK Tribunal decisions for guidance on how the Order is to be interpreted. 

Employers should be aware that the Order came into force on 25 July 2025 and applies to all claims, including those already in process before the Order took effect. 

Overview of the Order

Under the Order, the Tribunal may award costs, on its own initiative or the application of a party, if it is satisfied that a party (or their representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably either in the bringing of proceedings or in the conduct of proceedings.

An application for costs must be made to the Tribunal within 21 days of the conclusion of proceedings, either orally or in writing. The Tribunal will not usually convene a separate hearing for a costs application, but will determine the application based on the oral and written submissions.

If an application is successful, the Tribunal can award costs on an indemnity basis up to a maximum of £10,000. In determining the appropriate award, the Tribunal will have regard to the ability of the party concerned to pay. UK case law suggests that this is likely to include factors such as whether the claimant is a self-represented litigant in person who may have less financial means to make a payment. 

When can costs be awarded?

Non-statutory guidance issued by the Tribunal sets out a non-exhaustive list of factors which may be taken into account when determining whether costs will be awarded. 

These include:

• how far the proceedings have progressed – a claim that is withdrawn before the first case management meeting, or shortly thereafter, is unlikely to result in a costs order
  
  
• whether a party fails to turn up to a hearing without good excuse
  
  
• if a party continues with a claim or response or parts thereof that are hopeless – note that the Tribunal may make a limited costs order where an otherwise successful party is ordered to pay the costs associated with aspects of the case found to be hopeless
  
  
• a party failing to accept an offer of settlement that is more than or close to an award made by the Tribunal
  
  
• a party sending abusive correspondence to the other party or engaging in correspondence that is irrelevant to the issues in dispute

UK regime

As mentioned, the wording of the Order's provisions closely aligns with Rule 74 of the UK's Employment Tribunal Procedure Rules. In the UK, the Tribunal must consider making a costs order where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings or the way in which proceedings have been conducted. 

Although the UK costs regime is well established, costs in the UK Employment Tribunal have generally been viewed as "the exception rather than the rule". This is particularly the case in the employment context given that, that unlike in the civil courts, costs do not "follow the event", i.e. the losing party will pay legal costs for both sides. On average, costs are only awarded in approximately 0.2% of all cases issued in the UK tribunal. 

In line with this more cautious approach, UK case law has confirmed that the Tribunal should first consider whether it has the discretion to assess the manner in which proceedings have been conducted before determining whether conduct has in fact met the threshold of having been vexatious, abusive, disruptive or unreasonable.

Breaking the test down, "vexatious" conduct has typically been held to be a very high bar to meet. The case of Marler Ltd v Robertson, for example, confirmed that conduct is only vexatious "if an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive".^[1] 

In practice, therefore, parties have been more likely to rely on meeting the wider "unreasonable" conduct threshold, particularly given that the Tribunal has confirmed that it should not be taken to be the equivalent of vexatious.^[2] One common example of unreasonable conduct is dishonesty, including lying to the tribunal. As a result, employers should be alive to the risks around fabricating key pieces of evidence in line with the Tribunal's traditionally strong approach to those parties who make false allegations. Unreasonable conduct could also extend to failure to comply with the Tribunal's orders, non-attendance at hearings and the sharing of an inadequate or incomplete trial bundle.

Impact 

The Order is a considerable departure from the previous rationale of the Tribunal being upheld as a "no-cost" jurisdiction so that it could be as accessible as possible for litigants in person to bring proceedings "without fear of severe financial penalty in the event that they fail".^[3] From a policy perspective, however, the Order may be welcomed by employers in that it could address instances of employees bringing proceedings from a tactical point of view in order to pressurise settlement discussions or push for reinstatement.

That said, employers need to be conscious of the limited remit of the Order, particularly given the increased compensation for discrimination claims, breaches of an employee's contractual rights and statutory employment rights which have already been introduced under the Employment and Discrimination (Jersey) Amendment Law 2025, as well as the fact that the maximum award of costs is only £10,000.

Please contact the authors below or your usual Walkers contact if you wish to discuss this further.

^{[1] Marler Ltd v Robertson [1974] ICR 72
[1] Dyer v Secretary of State for Employment [1983] 10 WLUK 154 (21 October 1983)
[1] Downer v LV Care Group and Ors [2023] TRE 04}