EAT Rules on Unless Orders and Costs Applications in Sivanandan v IOPC & Penna PLC
The EAT has ruled on whether 'unless orders' can apply to cost applications. The case: Sivanandan v Independent Office for Police Conduct (IOPC) & Penna PLC.
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Employment Appeal Tribunal Clarifies Unless Orders for Costs
The Employment Appeal Tribunal (EAT) has ruled that 'unless orders' can be applied to applications for costs within Employment Tribunal proceedings. This clarification came in the case of Ms N Sivanandan v Independent Office for Police Conduct (IOPC) and Penna PLC ([2025] EAT 7).
Background of the Case
Ms Sivanandan initially brought a claim against the IOPC and Penna PLC alleging direct and indirect sex and race discrimination after not being shortlisted for a post. Her claim was dismissed at the original tribunal hearing, leading Penna PLC to make a costs application against her. Subsequently, Penna missed the deadline to file a costs schedule following an ‘unless order’. Penna applied for relief from sanction, which was granted, triggering this appeal.
The Tribunal's Decision
The EAT, presided over by His Honour Judge Auerbach, dismissed Ms Sivanandan's appeal. The key points of the judgment are as follows:
- An 'unless order' can be made regarding an application for costs, as it is considered "part of" a claim or response.
- Tribunals can consider non-compliance with an 'unless order' and relief from sanction applications concurrently.
- The test for relief from sanction is whether it's in the interest of justice to set aside the order; exceptional circumstances aren't required.
- The EAT cannot interfere with a relief application decision unless there's a legal error, irrelevant factors were considered, or the decision was perverse.
Key Legal Points
The EAT clarified several key legal points regarding 'unless orders' and costs applications:
- Rule 38 Application: Rule 38 of the Employment Tribunals Rules of Procedure 2013 enables an unless order to be made in respect of a costs application
- Fair Opportunity: Parties must have a fair opportunity to present written representations, but the specifics depend on the case.
- Interests of Justice: The primary test for granting relief from sanction is whether it serves the interests of justice.
Implications for Employers
This judgment reinforces the importance of adhering to Employment Tribunal deadlines and directions. It also highlights the availability of relief from sanction in cases of non-compliance, provided it's in the interests of justice. Businesses should ensure their legal representatives are well-versed in tribunal procedure.
Read the entire judgement here: Ms N Sivanandan v Independent Office for Police Conduct (1) Penna PLC (2) [2025] EAT 7
