Update on Abolishment of Employment Tribunal Fees

Issue

Make no mistake, the abolishment of employment tribunal fees is a big deal. Many of us who have been clamouring for change in this arena have been buoyed by the Supreme Court’s clarion call for access to justice and the rule of law as a mainstay of our democracy. However, after the initial euphoric response, inevitably comes the scratching of heads and universal “what happens now?”. What happens to claims that were previously dismissed or struck out for non-payment of the fees? What are we to make of claims that were in fact not brought because of the impediment of the fees? How are previously paid fees going to be refunded?

Guidance

Well, two weeks after the Supreme Court’s decision in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, the Presidents of the Employment Tribunals in England and Scotland have issued Case Management Orders to provide some clarity, the effect of which will be to:

• Stay (pause) all tribunal claims or applications brought in reliance of the Supreme Court’s decision pending awaited “decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the implications of that decision”; and​
• Directing any party or representative wishing to make representations for the further conduct of such claims or applications to contact the appropriate Regional Employment Judge 

Impact

There has been some confusion as to what this actually means because the Presidential Order specifically refers to rules containing the procedure for rejecting or dismissing claims that do not have the proper fee paid (or remission granted).

As a result, the Order appears to be limited to staying potential new claims that were previously dismissed or struck out for non-payment of fees, until the Ministry of Justice and HMCTS has decided how best to handle them.

Unfortunately, no guidance was given what is to happen to cases that were dismissed due to a claimant who did not bring a claim due to the unlawful fees. That means that employment lawyers will continue to speculate on the potential for those who did not submit a claim because they saw the fees as a block being able to now submit them.

We expect that there will be a test case for this scenario very shortly, but would strongly advise that any individuals who would have brought a claim in the last four years but did not do so because of the fees , do so as a matter of urgency. The law states that in cases of unfair dismissal a claimant who did not bring a claim within the usual time limit must show that it was not reasonably practicable to present their claim in time (because of the fees), and the Tribunal must decide that the time within which claim was presented was reasonable. Discrimination cases are slightly more favourable to claimants in that a Tribunal may also extend time to submit a claim if it considers it just and equitable to do so.

Action

We expect the Ministry of Justice and HMCTS will attempt to limit the number of claims which could come forward and argue that individuals who unreasonably delay coming forward to bring a claim post-judgment will be out of time. Our current thinking is that an unreasonable delay is like to be days and weeks, rather than months, based on existing case law.

Therefore, the key takeaway for claimants is to not delay in re-submitting a claim.

For employers, it is at least conceivable that you may be faced with a historic claim dating back to 2013 (when the fees were introduced). We would advise that businesses remain diligent in keeping records pursuant to their document retention policies so they are well placed to deal with claims that come out of the woodwork. As it is likely that tribunal claims will rise employers should review their HR policies to ensure that they comply with best practice and are up to date.

Article written by Daniel Stander, Employment Solicitor.

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