Following the Supreme Court's earlier decision in R (on the application of UNISON) v Lord Chancellor that the Employment Tribunal fee system was unlawful, the Government has launched the initial phase of its refund scheme.
The background to the Supreme Court's decision is set out in our previous article. In short, however, the Supreme Court held that the fee system was unlawful under both domestic and EU law; as confirmed by evidence presented by UNISON, it denied many individuals access to justice and was indirectly discriminatory against women. There had been a 66-70% reduction in cases since the fee system had been introduced.
It was therefore decided that the fee system must be scrapped immediately, as of 26 July 2017, and the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 was quashed that very same day - a remarkable decision given the history of the case. Employment Tribunals across the country were simply told to stop accepting payment of fees.
The public at large is, therefore, now once again presented with the situation that the Employment Tribunal service is free for all to use, apart from any legal fees incurred by either party through their own choice. An obvious spike in claims is clearly expected.
What about all of those fees paid?
As a result of this remarkable decision, ministers committed the Government to refund those who had paid Employment Tribunal fees. The Employment Tribunal Service was therefore faced with the very daunting task of repaying the £27 million in fees that had been paid since the introduction of the fee system in 2013. Such fees include:
- Any fees paid by individual claimants bringing a claim to the Employment Tribunal, including both the issue and the hearing fees as applicable to their case;
- Any fees paid by respondents who have been ordered to pay a successful claimant's fees as part of any compensation award;
- Any judicial mediation fees paid by respondents in an attempt to settle matters without recourse to litigation; and
- Any fees paid in the pursuit of an appeal against a decision of the Employment Tribunal.
It is estimated that the total cost involved in refunding all previously paid tribunal fees will be £33 million, as confirmed in a written answer to a parliamentary question recently.
The refund scheme - initial phase
The Government has confirmed (on 20 October 2017) that an initial phase of the scheme will last for four weeks, during which approximately 1,000 people will be contacted on an individual basis and each given the opportunity to apply for a refund. Successful applicants to the scheme will have their paid fees refunded together with interest calculated at 0.5% from the date of the original fee payment, until the refund date.
After the initial four week phase, the full details of the refund scheme will hopefully be available from the Government. In the meantime, any individuals who have paid fees historically but are not contacted in the initial phase can pre-register their claims by emailing email@example.com or writing to the following addresses:
For proceedings in England and Wales:
Employment Tribunal Central Office (England and Wales)/Employment Appeal Tribunal (EAT) Fees
PO Box 10218
Leicester LE1 8EG
For proceedings in Scotland:
Employment Tribunals Central Office Scotland/Employment Appeal Tribunal (EAT) Fees
PO Box 27105
Glasgow G2 9JRX