The Claimant had submitted claims to the ET against two Respondents back in 2013, one of which was the agency which had conducted the recruitment exercise (Penna). All the claims were dismissed after going all the way to the Court of Appeal. Penna applied for a costs order against the Claimant and was given a deadline, referred to as an unless order, which Penna missed by 4 1/2 hours. Penna then applied for relief from the sanction of a dismissal of the costs application citing various reasons why it could not be filed in time. That relief was granted and the Claimant applied fore a reconsideration which was dismissed. The Claimant appealed against the relief-from-sanction decision and the reconsideration decision, the main ground being that an unless order cannot be made in respect of a costs application .

The EAT dismissed the appeal. An unless order made pursuant to rule 38 Employment Tribunals Rules of Procedure 2013 may be made in respect of an application for costs, which, for these purposes, falls within the concept of “part of” a claim or a response to a claim. Accordingly, where an unless order has been made in respect of a direction relating to a costs application, and the party concerned complies only after the deadline set by the order, the party concerned may apply for relief from sanction under rule 38(2). It is not necessarily an error for a tribunal to consider the question of whether there has been failure to comply with an unless order, and the question of whether relief from sanction should be granted, sequentially on the same occasion. Rule 38(2) provides that, unless the application for relief includes a request for a hearing, the tribunal may determine it on the basis of written representations. That means that both parties should have a fair opportunity to make written representations, but what that requires in the given case depends on all the circumstances of the case. The test on an application under rule 38(2) is, as set out in the rule, whether it is in the interests of justice to set aside the order. There is general guidance given in Thind v Salvesen Logistics UKEAT/487/09 at [14]. There is no rule of law that there must be exceptional circumstances explaining the failure to comply, in order for relief to be granted. The decision on a relief application involves the exercise of a judicial discretion which belongs to the employment tribunal. Absent a substantive error of law, the EAT cannot interfere with a decision on such an application unless the tribunal has not considered relevant considerations, taken into account irrelevant considerations or reached a perverse decision.