Following the Supreme Court’s decision that tribunal fees were unlawful, the government refund scheme for tribunal fees is now open for both claimants and respondents.

Background

On 26 July 2017, the Supreme Court ruled that the employment tribunal fee regime was unlawful as it prevented access to justice (our blog gives more information on that decision). Tribunals immediately stopped accepting fees and the government committed to refunding fees that had been paid.

The estimated cost of refunds is £33million.

Which fees will be refunded?

Claimants and respondents will be able to claim a refund of fees paid to employment tribunals or the Employment Appeal Tribunal (EAT). This will include, for example:

  • Claimant issue fees (£160 or £250) to bring a claim
  • Claimant hearing fees (£230 or £950)
  • Respondent fees, for example £160 for an employer contract claim or £600 for judicial mediation
  • Fees for EAT appeals (£400 issue fee, £1,200 hearing fee).

A tribunal ordered us to reimburse a claimant’s fees – can we get a refund?

Yes. Under the fee regime, if a claimant won their case at the tribunal, the respondent would usually be ordered to reimburse the claimant’s issue and hearing fees via a costs / expenses order. Respondents can now claim a refund of these sums from the government. You will need to include a copy of the relevant tribunal order and evidence that you reimbursed the claimant (such as a receipt or bank statement).

A negotiated settlement included compensation for tribunal fees – can we claim this back?

Where claimants paid tribunal fees, settlement deals often included a sum from employers to compensate the claimant for those fees. However, the government refund scheme is not open to employers who compensated claimants in this way.

Furthermore, it appears that such claimants can claim a refund – they are only barred from doing so if their fees were reimbursed via a costs / expenses order made by the tribunal.

Could you claim these sums back from a claimant (on the basis that they are entitled to a government refund)? It is unlikely that you will have any realistic or cost-effective options for this either via the terms of your settlement deal or otherwise, but if you want to discuss your own circumstances please get in touch.

Details of refund scheme

On 20 October 2017, the government announced that it would contact around 1,000 people individually over the following four weeks, and allow them to complete a refund application. At that stage, individuals could also pre-register their interest in applying for a refund.

The full refund scheme opened on 15 November 2017.

Claimants can apply online if they haven’t changed name since they made their claim; their claim was against one employer; and they have a UK bank account.

Otherwise, claimants, respondents and representatives should apply by post or email using the following forms:

  • Claimants – form 1-C
  • Respondents – form 2-R – use this if you paid fees to the tribunal or EAT, or you were ordered to pay a claimant’s fees via a costs / expenses order
  • Representatives / trade unions – form 3-S – this is for representatives or sponsors of a party to a claim (who have not been reimbursed by that party) and for lead claimants in multiple claims.

The forms, address and email details are on the government website.

Refunds will be transferred to bank accounts, together with 0.5% interest.

Claims rejected or dismissed for non-payment of fees

The government has indicated that it will make arrangements to deal with claims that were rejected or dismissed for non-payment of fees. No details are available as yet, but Workbox users can keep an eye on developments via our What’s New? page.

Late tribunal claims

Will individuals, whose claims are time-barred, be allowed to submit late claims if they can show that they didn’t bring a claim originally because of tribunal fees?

Doubtless, some will make this argument, but whether a tribunal ultimately allows such a claim to proceed will depend on the particular circumstances, including for example whether documentation is still available and witnesses can still be contacted.