Unison v Kelly and Ors

This important decision of the Court of Appeal makes it possible for respondents in appeals from employment tribunal proceedings in the Court of Appeal to secure an order protecting them from costs if the other side wins. There was some doubt as to whether this was possible given the previous Court of Appeal decision in Eweida v British Airways Plc [2009] EWCA Civ 1025 that a Protective Costs Order (PCO) was not available in appeals from employment proceedings because they were private law proceedings.

The Court of Appeal decided that even if a PCO was not available it was possible to make an order that the Respondent union in the case could only continue to have permission to appeal on the condition that if it was successful it could not recover any costs from the individual Respondent union members who had brought the initial ET proceedings.

The Court made their ruling based on four particular features of the case:

1. The appeal raised a point of wider public interest (the interplay between Article 11 ECHR and domestic trade union legislation);

2. The employment tribunal jurisdiction is essentially a cost-free one for important public policy objectives;

3. The party seeking the order had been successful below (in the ET and EAT), it was the union who was bringing the appeal;

4. Lawyers for the Respondents were acting pro bono and agreed themselves not to receive costs if the appeal was unsuccessful.

The decision will be of particular interest to those advising claimants who have been successful in employment tribunal proceedings where appeals are brought including issues of public importance. It also marks a trend in favour of costs protection in appellate courts.

Nick De Marco appeared (pro bono) for the successful Respondents who obtained the Order.