Under Rule 75 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Tribunals have the power to make a costs order against the other party in any employment proceedings. They may exercise this discretion where a party has acted unreasonably in bringing the proceedings or where the claim or response has no reasonable prospects of success.

With the introduction of issue fees in the Tribunal, Rule 76(4) has been amended so that Tribunals have the power to include in any such costs order a provision for the payment of the Tribunal issue fee.

It is early days and so it is not yet known whether it will become standard procedure that payment of the issue fee is included in any order for costs. However, at the recent hearing in the claim brought by Unison, in which they are challenging the introduction of Tribunal fees, the Tribunal said that its guidance will be amended so that the general position is that if a Claimant is successful, the Respondent will be ordered to reimburse the Claimant for the payment of their issue fee.

It remains to be seen whether this will actually be implemented and if so, how different Tribunals will apply this in practice.