It is common knowledge that fees required to be paid to commence Employment Tribunal proceedings and to have a Hearing take place to hear those proceedings were found to be unlawful by the Supreme Court on 26^th July 2017.

Employment Tribunal fees were introduced by the Government in July 2013. Prior to that time Employment Tribunals had been free to access, and statistically, after fees were introduced, the number of claims presented in the Employment Tribunals dropped significantly, by around 70%. The amount of the fee due was dependant on the type of claim presented but, for example, to pursue an Unfair Dismissal, an employee (who had been put out of work by their former employer) had to pay £250 to start the claim, and another £950 prior to the hearing taking place.

If an employee was successful with their claim they could, in most cases, claim the fees paid back from the unsuccessful employer.

A challenge to the fees regime was brought by Unison immediately off the back of the introduction of fees in 2013. The challenge, based primarily around employees’ rights of access to justice, took four years to reach the Supreme Court, where it has ultimately proved successful.

Now the dust has settled on this remarkable turnaround, where are we? The following points provide a practical guide on the matters arising out of this change and highlight key issues where further information is required:

• As a result of the Supreme Court judgment, the Employment Tribunals immediately stopped requesting fees when a new claim was submitted. The online claim form has now been amended so that this can now be submitted without a fee being requested. For ongoing claims, Hearing Fees are no longer demanded for a Hearing to take place.
• The Government has announced that all fees previously paid to the Employment Tribunals will be repaid to those that ultimately paid them, whether that was employees or unsuccessful employers.
  • The regime for repayment has not yet been finalised. We are therefore currently unaware of the process to be set up to deal with reimbursement. As soon as this is announced we will provide further detail.
  • In cases now heard by the Employment Tribunals where an employee is successful and paid a fee earlier in the claim, the Tribunals are not ordering that the employer repay that fee. Given the employee will have a method to reclaim the fee from the Government; the Tribunals have decided this is an adequate process by which the employee will be compensated.
• During House of Commons questioning, the Government confirmed they have no plans to introduce a new and amended fees regime. All indications are that the Employment Tribunals will remain free to access going forward.
• We have seen that Tribunals are re-instating cases that were struck out prior to the Supreme Court judgment due to non-payment of a fee. Challenges are also being brought by employees to say that claims, which are now out of time, should be accepted by the Employment Tribunals as the reason they were not started earlier was because the employee could not afford the fee. We have not seen a judgment on this point as yet; as soon as we do we will provide an update

Next steps for employers

• Please be aware that the Employment Tribunals are now free to access. This is likely to result in an increase in employment claims going forward. Employees are therefore more likely to challenge employment processes within your organisation so you should ensure those processes are adequate and that training has been provided to managers so that those processes are implemented effectively. We can assist with a review of your procedural and policy documentation, or with any employment training that you may require.
• Have you paid an employment tribunal fee due to failing to defend an employment claim and would like advice on how to claim it back? Please contact us for advice.
• Have you paid an employment tribunal fee as part of a settlement with the claimant and would like to attempt to claim this back? Please get in touch so that we can analyse the settlement reached.

Comment: the judgment reached by the Supreme Court on the lawfulness of the Employment Tribunals fees regime is potentially far reaching. Its observations on access to justice for all could prove to be a watershed moment and we may see further challenges presented on perceived obstructions to justice. If you require any guidance on this or anything else within this article please don’t hesitate to call MKB’s expert employment law team on 01226 210000.

Ben McFeely
Partner