Unison’s challenge to the introduction of tribunal fees has been dismissed by the High Court, in large part because it was brought too early before sufficient evidence was available. An appeal has been lodged. The court also made clear that the Lord Chancellor will be under a duty to amend the fees regime if future statistics show that the EU requirement for effective remedies is being infringed.
The court did note that, given one of the policy objectives of the fee scheme is to encourage careful decision-making before cases are brought or continued, tribunals should issue case management orders to ensure that witness statements and documents are exchanged before the hearing fee is due.
The Lord Chancellor also conceded during the course of proceedings that a successful claimant should expect to recover the fees they have paid from the respondent. This has been reinforced by an EAT ruling in Portnykh v Nomura International plc. The EAT made it clear that, even where the respondent has acted properly in seeking to defend a claim, a successful claimant is likely to be able to recover their fees from the respondent. It ordered the respondent to pay the fees, conditional on the employee’s outstanding fee remission application not succeeding.
Tribunal guidance now states that the general position is that, if a claimant is successful, the respondent will be ordered to reimburse them. The tribunal rules may be amended to reflect this in due course.