Costs in the Jersey Employment and Discrimination Tribunal: Royal Court guidance

The Royal Court of Jersey has provided authoritative guidance on the Jersey Employment and Discrimination Tribunal’s new power to order a party to contribute to another party’s costs. In particular, the Tribunal considered whether costs awards are ‘punitive‘ or ‘compensatory‘ in nature.

Background

The Tribunal’s power to award costs was introduced for the first time in July 2025.

In short, under Article 40A of the Employment and Discrimination Tribunal (Procedure) Order 2016, the Tribunal may award costs up to a maximum of £10,000 if a party or their representative has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably‘ in either bringing or conducting Tribunal proceedings.

In December 2025, in the case of Page v JEV Company and Frederick, the Tribunal was asked to make a costs award against a respondent and its representative. It declined to do so, commenting:

the costs regime deters unreasonable conduct, encourages settlement and compensates a party affected by unreasonable behaviour for wasted costs. The regime is compensatory in nature and does not allow the Tribunal to penalise a party for unreasonable behaviour where there are no associated wasted costs.

The Francioso costs appeal

Also in December 2025, the Tribunal issued a judgment in the case of Francioso v States Employment Board. In this case, a single claim for discrimination arising from disability was upheld and Ms Francioso’s dismissal was found to have been unfair.

Ms Francioso was awarded £15,000 for hurt and distress in connection with her discrimination claim, but her unfair dismissal compensation was reduced from £37,295 to nil because the Tribunal concluded that she had unreasonably refused a settlement offer in the same amount.

Following that judgment, both parties applied for a costs award against the other. The Tribunal refused both applications, stating:

Article 40A introduces a very limited costs regime. There is no scope for what in the Royal Court would be standard costs. If the threshold of behaviour set out in Article 40A(1) has been met the Tribunal may award a party up to £10,000 in costs…if there is a doubt about whether the costs are reasonable or have been reasonably incurred the Tribunal must resolve that doubt in favour of the receiving party. It does not mean that the receiving party can claim costs that have not been incurred. The costs regime under Article 40A is therefore compensatory and not punitive and the party seeking costs must demonstrate that wasted costs have been incurred.

The States Employment Board (SEB) appealed to the Royal Court about the costs refusal decision.

During the costs appeal hearing, the parties agreed to settle the substantive issues in the case, but the Court was asked to consider the SEB’s costs appeal as a point of law of general importance.

The Court allowed the appeal and a judgment has now been published setting out its reasons.

Costs appeal judgment

Confirming that the SEB’s costs appeal succeeded, the Deputy Bailiff held that:

• The purpose of the Tribunal’s cost power is to ‘deter and sanction‘ conduct which is vexatious, abusive, disruptive or otherwise unreasonable conduct. As such, the costs power is punitive in nature, not compensatory in nature.
• The costs awarded must, however, have been incurred by the receiving party – to that extent, costs awards may be seen as compensatory, but nonetheless the purpose of an award is to sanction rather than to compensate a winning party for its costs.
• Contrary to what the Tribunal had said, a party seeking a costs award is not required to identify or quantify ‘wasted costs‘ incurred by the losing party’s legal representatives, in the way envisaged in other contexts (such as criminal proceedings).

Key takeaways

The costs appeal judgment in Francioso provides authoritative guidance on this area of the law in Jersey. The key points to take away are that:

1. The Tribunal’s power to award costs is expressly intended to deter and sanction unreasonable conduct, rather than simply to compensate a party for financial loss.
2. Accordingly, when determining the amount of any costs award, the core issue which the Tribunal must consider is the extent to which the paying party’s behaviour was unreasonable.
3. There is no requirement for the receiving party (i.e. the party seeking the costs award) to identify specific costs incurred as a result of the conduct of the other party’s representatives.
4. The punitive nature of a costs award is nonetheless qualified by the requirement that the costs must have been incurred and by the paying party’s ability to pay.

To discuss these issues further, please contact a member of the team or your usual Mourant contact.