Tribunal
Most employment disputes that are not resolved by negotiation are dealt with by an Employment Tribunal.
The normal starting point in the Tribunal is that the loser does not have to pay the winner’s costs, including the costs of a solicitor. If a party were to make a really bad claim (or put in a hopeless defence) or act frivolously, vexatiously or otherwise unreasonably then the Tribunal can order that party to pay some or all of the winner’s costs. This power to order payment of costs is used rarely.
Public Funding (i.e. what used to be called Legal Aid) is not normally available for Tribunal cases. To the extent that it is available I do not offer it.
Appeals: The Employment Appeal Tribunal is more likely to order an unsuccessful appellant to pay the costs of his opponent for the appeal process, particularly if it thinks the appeal to have been unnecessary.
Public Funding is available to an individual, whether Appellant or Respondent, subject to means-testing and the strength of the case. It is difficult to get an order for payment of costs from a legally-aided party. You are entitled to oppose the granting of Public Funding to your opponent.
It follows from the above remarks that you are normally not likely to be liable for your opponent’s costs but are unlikely to recover any of your own.
Court
Employment disputes in the courts are much less common: typically they relate to larger breach of contract claims and arguments about post-termination restrictions.
The starting point here is that the loser is normally ordered to pay most of the winner’s costs – subject to assessment by the court. This means that before you start a case you do need to be confident that you are on fairly firm ground.
If your opponent is legally aided at any stage then you may very well not get an order for your opponent to pay your costs even if you win the case.
If you decide to pull out of the case at any time there is a real risk, subject to negotiation, that you will have to pay some of your opponent’s costs.
