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Tribunal fee refunds to commence

Nov 6, 2017

Last month, the Ministry of Justice and HM Courts and Tribunals Service announced that the refund process was to commence in respect of Employment Tribunal fees.  Tebo Sebitlo, Trainee Solicitor, explains here how the process will work, and reviews what the future may hold for Employment Tribunals in the future.

Unlawful Tribunal fees

In July of this year the Supreme Court ruled that the Tribunal fees regime, in which a claimant was required to pay a fee to bring their claim against an employer to Court, was unlawful as it infringed employee rights and blocked access to justice.  The fees were introduced in July 2013 and it is thought the refunds will consist of the actual amount a claimant paid for the Tribunal, plus interest of 0.5% calculated from the date of the original payment to the refund date. 

It is estimated that the cost of repaying these fees will be £33million with the refunds being managed in a phased system.  It is likely the number of people entitled to a refund could reach 100,000, however only 1,000 people will not be contacted individually and given the opportunity to apply for a refund in the initial roll out.  The full scheme will be opening in several weeks time, but there is an option to pre-register refund claims before then.

There are areas to be confirmed as we move through the next few weeks, such as whether Employment Appeal Tribunal fees will also be included in the refund, whether the refunds are available for both claimants and respondents in a case, and whether any costs orders will be factored into the refund amount.   The role of Trade Unions will also need to be considered, as many claimants had their Tribunal fees paid for on their behalf by trade unions.

Out of time employment claims

There is uncertainty as to whether employees will now be able to bring a claim against their employer even though the issue may be outside of the three month time limit.  Over the last four years, some employee’s claims were rejected or dismissed for non-payment of the fee or failure to apply for remission, and so we could see these claims being resurrected.   If an employer believes they could have a claim brought against them in this respect, they should take steps to ensure they are prepared to defend themselves, and have the necessary information available should it be required.

A different issue surrounds those employees who may have been put off from bringing a claim due to having the pay the Tribunal fee, and we await confirmation as to whether the out of time claim regime will change to meet these cases. 

Applying for Tribunal fee refund

If people believe they are entitled to a refund, they can register their interest before the full scheme opens at a later date.  There will be a process to follow, including a “declaration of truth” as part of the verification process to ensure they are entitled to the refund. 

If you think you are entitled to a Tribunal fee refund and have not been contacted as part of the initial refund process, you can register your interest for when the full scheme is opened.  Either email ethelpwithfees@hmcts.gsi.gov.uk or contact them via post to:

Employment Tribunal Central Office (England and Wales)/Employment Appeal Tribunal (EAT) Fees

PO Box 10218

Leicester

LE1 8EG

What next for Tribunal fees?

There is no denying that the removal of the Tribunal fees leaves a gap in Government funding, made larger by the refunds that will be paid.  However, there is no indication that a new fee regime will be introduced, and we await further plans in regards to funding. 

With the barrier of Tribunal fees removed from potential claimants, some areas are already reporting an increase in claims being brought, with Bristol Employment Tribunal seeing an increase of 300% since the abolishment of the fees.  Employers therefore must be vigilant in their treatment of employees, ensuring a fair process is maintained across the workforce, and that policies and procedures are not only in place but also adhered to.

If you are an employer or an employee with questions about the tribunal fee regime, you can contact Tebo or the Employment team on 02380 717717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.