In the recent decision of Madu v Loughborough College [2025] EAT 52, the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) had erred in making a costs award of £20,000 against a Claimant who brought a race discrimination claim, initially acting as as a litigant in person.
Costs in the Employment Tribunal
An ET can make a costs order, and must consider whether to do so, where:
- A party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting proceedings, or a part of them; and
- A claim, response or reply has no reasonable prospect of success.
However, unlike the civil Courts, costs orders in the Employment Tribunal are the exception, not the rule.
Background
On 5 September 2018, Mr Madu, a black British man, applied for a part-time role as a lecturer at Loughborough College (College). Mr Madu was competing against two other candidates; AB who was white British and DW who was white Irish.
Mr Madu’s interview was scheduled for the morning, but when he requested to reschedule it for later in the day to take advantage of cheaper train tickets, his request was denied due to the interviewing panel’s afternoon commitments. However, Mr Madu later discovered that DW’s interview had been moved to the following morning.
The candidates were scored based on their responses to a set of predetermined questions. AB scored 107 points and was offered the job, while Mr Madu scored 72 points and DW scored 68 points.
Mr Madu subsequently brought a claim for race discrimination claim, arguing that he had been treated less favourably because of his race. Namely on the grounds that:
- His interview could not be rescheduled, whereas DW’s was postponed until the following day.
- The College delayed in responding to his request for feedback and to his grievance.
- Only 2.9% of staff at the College were non-white.
Initially Mr Madu acted as a litigant in person, before eventually appointing a solicitor to act on his behalf.
After a full hearing, the Employment Tribunal dismissed Mr Madu’s claims, and the College subsequently applied for an order for costs.
The application was successful, and Mr Madu was ordered to pay £20,000 in costs.
Appeal
Mr Madu appealed, arguing that:
- The ET had erred in its assumption that once he had obtained legal representation, he had been advised that his claim had no reasonable prospects of success.
- The ET didn’t consider the substantial period in which he was unrepresented and whether he should have understood that his claim had no reasonable prospects of success.
Decision
The EAT allowed Mr Madu’s appeal and remitted the College’s costs application to be considered by a different ET.
What does this mean?
This decision serves as a reminder that the threshold for securing a costs order in the ET remains high. Largely this is because the ET system is designed to support access to justice, particularly for Claimants navigating complex discrimination claims without the benefit of legal representation.
The decision makes clear that where a Respondent contends that a claim is misconceived or unreasonable, they should take procedural steps such as making a costs warning or pursuing an application for strike out or a deposit order at an early stage to strengthen their chance of successfully securing an order for costs against a Claimant.
Ultimately, costs orders against litigants in person remain exceptional, particularly in discrimination cases where Claimants often lack legal knowledge and early access to legal advice. Further, the decision makes clear that the presumption that a Claimant has understood that their claim had no reasonable prospect of success simply because they have obtained legal representation at some stage is not straightforward, particularly where privilege is not waived.
If you require any assistance with Employment Tribunal litigation or have a query about costs orders, please contact a member of the Employment team at Glaisyers ETL.
