The effect of the ruling is that the fees regime has been held to have been unlawful from the time it was introduced in 2013. Fees are no longer being charged by Employment Tribunals and the Employment Appeal Tribunal, and those that have paid Tribunal fees will be refunded – at an estimated cost of £32 million.
Whilst this ruling has huge implications for employment law, it left a lot of questions unanswered, such as:
- What about those whose claims were rejected or dismissed for not having paid the proper fee – will they be able to have their claim re-instated?
- What about those who didn’t bring a claim because they were deterred from doing so by having to pay a fee? Can they still bring a claim even if they would now be out of time for doing so?
- How will refunds be dealt with in claims involving multiple claimants?
- What about cases where the Tribunal had ordered the employer to reimburse the fee paid by the employee – will the employer be refunded?
The President of the Employment Tribunal subsequently issued a Case Management Order, on 9 August, staying all claims brought in reliance on the Supreme Court’s judgment until the Ministry of Justice and HM Courts & Tribunals Service had made a decision about how such claims would be handled.
The stay on cases was lifted on 18 August in a further Case Management Order, under which applications for reimbursement of fees, or for the reinstatement of claims rejected or dismissed for non-payment of fees, are to be made in accordance with administrative arrangements “to be announced by the Ministry of Justice and Her Majesty’s Courts and Tribunals Service shortly”. Other matters are to be considered judicially in the normal way. We are still awaiting details of the arrangements for a scheme to enable fees to be refunded, an announcement is expected in September and we will of course keep you up to date through our ebulletins.
An employee may be able to bring a claim that would otherwise be out of time if they can show that it was not ‘reasonably practicable’ to bring the claim in time (in unfair dismissal claims), or that it is ‘just and equitable’ to extend the time limit for bringing the claim (in discrimination claims).
There will certainly be an increase in the number of claims being brought in the Tribunal, however it is of course possible that the government will seek to impose a new fees regime. In the meantime, there is uncertainty for employers who may have previously breathed a sigh of relief that an (ex)employee was out of time to bring a claim.
If you are dealing with a Tribunal claim (or a potential claim), contact us for a no obligation chat to find out how we can help.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.