Further to my blog of 8 August 2017, the President of the Employment Tribunal (ET) has made a case management order stating that:
- All claims and applications brought in the Employment Tribunal in England and Wales in reliance upon the decision of the Supreme Court in R (on the application of UNISON) v Lord Chancellor 2017 UKSC 51 (26 July 2017) shall be stayed to await decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the implications of that decision.
- Any party wishing to make representations for the further conduct of such claims or applications should do so upon application to the Regional Employment Judge for the relevant Employment Tribunal region.
- A copy of this case management order shall be sent to ACAS and all known interested parties or persons and shall be published on the Judiciary website.
What this means is that the Government and the Courts are likely to come up with a universal system for dealing with claims and applications that people may want to make after the recent Supreme Court decision. Whilst this is happening, there is a stay on these claims and applications which means that they are effectively on hold.
So, what do we mean by ‘claims’ and ‘applications’? By way of background, before the UNISON decision, everyone making a claim in the Employment Tribunal either had to pay a fee or apply for remission if there was a reason that they couldn’t pay. The Supreme Court declared the fees unlawful, and so arrangements now have to be made to refund them. However, people may also complain that they were unable to start or continue a claim because they could not pay the fees at the time, and so may now ask for those claims to be reconsidered.
The sorts of claims that are likely to be affected by the order are:
- Claims without a fee or an application for remission that would be within the timescale usually allowed by the ET i.e. a normal claim but without a fee because a fee is now unlawful;
- Claims without a fee or remission application that would be out of time but where it is argued that the introduction of fees prevented the claim being brought within the usual timescale.
These are basically new claims that people may want to make in light of the recent decision.
Individuals can also make applications to change actions already taken by the ET rather than making a new claim. The types of applications that the President’s order is likely to put on hold are those where:
- Claims which did not have a fee paid or remission and were therefore rejected;
- Claims which did not have a hearing fee paid and were therefore dismissed;
- Claims with a notice from the ET requiring a party to specify a date when the fee would be paid;
- Claims that required the employer to pay back fees to a successful claimant;
- Claims where claimants paid the fee, lost the case and therefore now want this refunded.