As most readers will be well aware, the Supreme Court (the highest court in the UK) ended the employment tribunal fees regime when it decided on 26 July that the current regime was unlawful. Last week, we reported that the Employment Tribunals put on hold all claims and applications which rely on the fact that the employment tribunal fees regime was unlawful until such time as a decision is 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
  • 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 straight-forward 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.