• International Workplace
  • 26 September 2017

Employment Tribunal fees – claims for reimbursement can now go ahead

On 26 July, the Supreme Court (the highest court in the UK) ended the Employment Tribunal Fees Regime when it decided that the current regime was unlawful. In the immediate aftermath, the Justice Minster, Dominic Raab, announced that the Government would stop taking fees immediately, and begin the process of reimbursing all fees paid since 29 July 2013 (estimated to be around £32m).

Speculation has since then turned to considering whether people who were deterred from bringing claims because of the fees regime, or who had their claims struck out because they did not pay their fees, may be able to bring their claims out of time or reinstate them. 

Perhaps in reaction to this speculation, or potentially in response to applications and claims being made, a Case Management Order was made by the Employment Tribunals which stays (i.e. puts on hold) all claims and applications which rely on the fact that the Employment Tribunal Fees Regime was unlawful until a decision has been made by the Ministry of Justice (MoJ) and Her Majesty’s Courts and Tribunals Service (HMCTS) about how to handle them. 

It would appear that the MoJ and HMCTS have now made their intentions clear, so the Employment Tribunals have announced that these claims and applications can now go ahead.   According to the new Case Management Order announcing these changes,  we are to expect announcements from them shortly on:

  • the process for making applications for reimbursement of fees already paid; and
  • the process on how to make an application for reinstatement of claims rejected or dismissed for non-payment.

Any other claims or applications which rely on the UNISON case will proceed to be considered by the Tribunal in the usual way.

Will the refund process be simple?

Whilst it might sound like a straightforward process to refund people who have paid fees, there are a number of thorny practical issues to be worked through, including how the scheme will operate in cases where the Employment Tribunal ordered the employer to reimburse the claimant in respect of the fee they paid (as will have happened in most cases where the claimant won).

Another tricky practical issue is what will happen where a claim settled and the employer reimbursed the claimant's fee as part of a settlement? Will the refund scheme include a mechanism to avoid the claimant receiving a windfall in these cases?

We will have to wait and see exactly how the scheme will work and how these issues will be dealt with when it is announced, hopefully in September.  But it appears at this stage that people who believe they are due a refund will need to apply for one, as opposed to automatically being issued with one.


This article first appeared at The Employment Hive and is reproduced with kind permission.