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Employment Tribunal Fees- Update

21st September 2017

As you will recall, last month we wrote about the decision of the Supreme Court to quash the Employment Tribunal Fees Order of 2013. The Government had already given an undertaking to the court that if it lost the case it would re-imburse the fees that had been paid to the Tribunal since the introduction in July 2013.

The Government’s own view is that the cost of this will exceed £30 Million.

As we explained in our news article last month the complication comes in when one considers the details in questions of who should be compensated, and how should they be compensated.

There is then the vexing question of what happens with cases where the individuals were unable to pursue their claims because of the fees. This falls into two distinct sub-groups. Firstly, those that tried to bring their claims, but were rejected or stayed (ie suspended) by the Employment Tribunal for non-payment of the fees, and secondly those that were deterred from bringing their claims because of the fees, so never in fact actually launched their claims in the Tribunal.

With regard to the first sub-group, the Employment Tribunals have lifted the stay (which effectively suspended these cases) on the cases that were waiting for the outcome of the UNISON challenge in the Supreme Court. These are cases which had been received at the Tribunal offices, but held back until the decision of the Supreme Court on the lawfulness of the Tribunal Fees Order. Those cases will now resume in the Employment Tribunals now that the Supreme Court has ruled that the Tribunal fees were illegal from their outset in July 2013. Of those cases that attempted to commence, but were simply rejected due to non-payment of fees (rather than being stayed) we presume that the Employment Tribunal will enable those cases to be revived.

As for the second group of cases, ie those that had been deterred from commencing in the Tribunals in the first place, this issue has been raised in Parliamentary Questions to Dominic Raab MP, the Minister with responsibility for dealing with this issue. In questions raised on the 5th September this year, Mr Raab has stated that in those cases which were deterred in the first place due to the fees the individuals can still present their claims to the Employment Tribunals to seek permission for them to proceed “out of time” (ie after the usual strict time limits), and that the Tribunals can then assess them on a case- by-case basis. This may seem well and good, but in our view, this could well result in inconsistent approaches and decisions, at least until one or more of these cases reach the appeal courts.

Further problems arise due to the different rules that apply to late applications for different sorts of cases. In cases of unfair dismissal for example, a claim may proceed out of time if the person bringing the claim can show that it “was not reasonably practicable” to bring the claim in the normal time limit, and that they then went on to bring the claim as soon as it did become practicable to do so. This is a strict test, which has generally resulted in few cases being allowed to proceed out of time. Examples where the Tribunals might allow such a case to proceed may be where the individual has spent time in hospital when the normal time limit expired, or was unable to deal with it due to extreme ill-health. Being unaware of the time limit, or having little money to finance a claim in the Tribunal have rarely passed the strict test under these rules. However, the test for some other claims, notably claims of unlawful discrimination, use a different test- one which will be passed if the individual can show that it is in the interest of justice to allow the case to proceed out of time. This is a broader test, and in light of the decision of the Supreme Court that the fees were unlawful all along, a test of “in the interests of justice” may win favour with many Employment Tribunals to allow those cases to proceed. 

It is still our view that the potentially more controversial and contentious issue is going to be the actual arrangements and terms of re-imbursing the fees that have already been paid. For those that paid the Tribunal’s fees and subsequently either withdrew them without having reached a settlement or lost their cases the solution appears simple- they should be directly re-imbursed the fees paid.

What of those cases where the Tribunal ordered the employer (or more usually former employer) to pay the fees as part of the judgment? There would need to be a check if the employers in question than actually did pay them to the individual. That would presumably require some examination of evidence of payment. It is shocking that a large number of orders made by the Employment Tribunals are not paid, and clearly if the former employer did not pay then they should not be “re-imbursed” for a payment that was not made.

There is then the question of the cases that settled after being commenced in the Employment Tribunal. Who should receive the re-imbursement then? Presumably the settlement will have taken some account of the payment of the fees to the Tribunal, but it is unlikely to have assigned particular amounts within the settlement payment to each element of the claim (including any fees paid to the Tribunal).

Probably the simplest answer will be to re-imburse the fees to the person that paid in the first place, irrespective of what then happened in the case- but we can see not going down well with employer organisations, who will certainly argue that this results in an unfair windfall to the people that did get their fees re-imbursed by their employer/former employer through the order of the Tribunal.

We understand that some Employment Tribunals are already having to consider the issue of the fees, in those cases that had commenced before the decision of the Supreme Court. In one case at the Sheffield Employment Tribunal in which the Employment Judge refused to order the re-imbursement of fees to the successful claimant on the basis that those fees will be the subject of a refund from the Government – and this was ordered before any final scheme for refunds has been announced!

As always, the devil is in the detail, and you can be sure that the arrangements made by the Government will not satisfy every group that has been affected by the fees.    

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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