Further to my blogs on 8 August, 10 August and 21 August, HMCTS have now announced details of the scheme to reimburse Employment Tribunal (ET) fees and re-instate claims that have been struck out. This is after the ruling by the Supreme Court in the case R (on the application of Unison) v Lord Chancellor on 26 July 2017 that fees for bringing a claim in the ET were unlawful as this prevented access to justice.
On 17 August 2017, Her Majesty’s Courts and Tribunals Service (HMCTS), made a statement that it expected details of a scheme to make the refunds to be announced in September 2017 however this did not happen until 16 October 2017.
A representative of HMCTS explained to the Employment Tribunals National User Group that an amount of £32.5 million is due to be refunded. This represents the fees collected since the regime for paying fees was introduced in July 2013 by the fees order (Employment Tribunals and the Employment Tribunal Appeal Tribunal Fees Order 2013, SI 2013/1893). This corresponds to approximately 100,000 claimants.
The scheme required any person believing that they are entitled to a refund to make an application to HMCTS. This also applies to employers who have paid the fee for claimant, if this was ordered by the ET, and Trade Unions who have paid fees on behalf of their members.
A further announcement on 20 October 2017 stated that around 1,000 people shall be contacted individually and given the chance to complete applications before the full scheme is opened in the near future. Trade Unions are also being contacted in relation to large multiple claims.
If you have paid ET fees but have not been invited to take part in this initial stage, there is a pre-registration for the next phase and further information may be obtained from, click here.
Rule 11 of the Employment Tribunal Rules of Procedure (the ET Rules) related to a claim being rejected if it was not accompanied by the required fee or an application to have the fee reduced or cancelled (remission). Rule 40 dealt with how claims are dismissed for non-payment of fees. Under the Unison case, these rules were therefore quashed.
HMCTS has estimated that there may be around 7,500 claims that did not proceed under these rules. People affected shall receive a letter from HMCTS to ask whether they would like their claim to re-instated and proceed towards trial.
What if a claim was not brought at all due to the requirement to pay a fee?
The scheme announced by HMCTS only covers claims that were already submitted to the ET. Individuals who now wish to bring an historic claim must file it with the ET as soon as possible with a request to extend the time limit on the grounds of the effect of the now unlawful fees order.