Employment Tribunal Fees - The floodgates have opened

You will by now be aware of the Supreme Court judgment in July this year which ruled that the Employment Tribunal fee system which was introduced in July 2013 was unlawful.

As a result of the judgment the Government announced that a refund scheme would be implemented for those who were required to pay fees since their introduction. The refund has been estimated to cost approximately £33m.

On 20 October 2017, some three months after the Supreme Court judgment, the Government launched the first stage of the refund scheme. Details of the same can be found HERE.

What about historic claims?

With the judgment, however came further questions in respect of those individuals who either didn’t bring claims because of the Tribunal fee structure, or had their claims thrown out for failure to pay the respective fees. If it could be shown that such claims were either not brought or were thrown out as a result of the fees, should those individuals be given an opportunity to reinstate their claims?

The answer appears to be yes. In October the Employment Appeal Tribunal began writing to Claimants whose claims were dismissed for failure to pay respective fees. The letter contains a tick box offering the claimant the opportunity to reinstate their claims. We have seen letters offering to reinstate claims dating back to 2013.

The matter may not be straight forward, however, for those Claimants who didn’t start the process, but who, following the ET fee judgment, now want to bring a claim. In such instances, the claimant would need to apply for an extension of time and provide sound legal reasoning for not bringing their claim within the required time period. This is clearly a blow to employers, who now may face historical claims dating back to 2013.

How will the Governments respond?

Whilst the Government are unlikely to get involved in the historical claims (it is likely that they will leave that to the judiciary), there have been whispers of a reintroduction of fees.

On 25 October 2017, Justice Secretary David Lidington gave evidence to the Justice Select Committee and was quizzed about Employment Tribunal fees. In giving evidence, Mr Lidington stated that the Government intended to reintroduce fees to “cover costs and deter frivolous litigation”. Commenting further, he stated that nothing in the Supreme Court’s judgment “ruled out fees in principle, in fact quite the reverse”, but acknowledged that the Government had to pay careful regard to the reasoning for the ruling on the previous scheme, especially on questions of access and affordability. “It’s a question of getting the balance right, I have accepted that the balance has to change.”

Whilst any changes to the fee structure are not likely to be implemented until late 2018, there does appear to be a lifeline for employers in respect of the reintroduction of fees. In the meantime, employers will need to remain proactive in their internal processes to ensure that their own floodgates remain closed.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.