Remember the Wizard of Oz – when the Munchkins dance around celebrating the demise of the Wicked Witch of the East? Well, following the decision of the Supreme Court, I’m still celebrating the announcement that the Employment Tribunal Fees introduced almost 4 years to the day previously are no more!
Following Unison’s victory in the Supreme Court, reported on 26 July 2017, there is now no charge to bring an employment tribunal claim. That’s right. No charge. No fee. To read the words on the Government’s website “You do not have to pay a fee to make a claim to the Employment Tribunal, even if it says so on the form”- it’s enough to make a grown claimant lawyer dance, Munchkin-like, for joy.
I’ve been passionately opposed to the Employment Tribunal fees regime since it was introduced in 2013 – and before. The huge drop in the number of claims that we have seen since the fees were introduced has only proved what many of us felt from the outset – that the fees would be a fundamental barrier to justice. With the regime in place, many people, already vulnerable, simply felt unable to bring a Tribunal claim. Unscrupulous or ignorant employers have been able to ride roughshod over their rights. Thanks to Unison bringing the claim, and the decision of the Supreme Court, Employment Tribunal Fees are dead* – but what does this mean?
The Tribunal Claim form mentions fees – what do I do?
Ignore it! You do not have to pay a fee to the Employment Tribunal, so ignore any parts of the claim form that mention it. Equally, if your employer talks about tribunal ‘fees’, you can be safe in the knowledge that they are wrong! The online claim submission system has been updated now, so you don’t have to pay a fee to submit a claim online.
I brought a claim after July 2013, and paid a fee to do so – can I get my money back?
The good news is that, yes, you will be reimbursed for the fees you paid when you brought your employment tribunal claim. The Government hasn’t yet announced how you will be able to reclaim the fees you paid – we’ll keep you updated. However, the Government has committed to reimbursing all fees paid: figures suggest this is between £27 and 32 million.
I didn’t bring a claim because I couldn’t afford to. Can I bring my claim now?
Many Employment Tribunal claims have a 3 month time limit associated with them. If you are still within the time limit, you can still bring your claim. In reality, this will only relate to a small number of potential claims. If your complaint relates to discrimination, and the behaviour you want to complain about is still going on, you will be able to bring a claim.
Can I get the time limit extended to bring my claim now?
It’s possible to ask the employment tribunal to extend the time limit for bringing your claim in certain circumstances. If you can show that you did not pursue a claim because it was too expensive at the time, the Tribunal may allow you to bring your claim ‘out of time’. Given the opinion of the Supreme Court that for many people, the fees would mean “…sacrificing ordinary and reasonable expenditure for substantial periods of time“, this must be something to consider.
Another approach may be to bring a claim for damages against the Government for bringing in unlawful legislation which prevented you from bringing a tribunal claim.
My settlement agreement included a fee to cover the cost of Tribunal fees – what do I do?
As with the process for reclaiming any fees, there may be a ‘waiting period’ to work out the best way of unpicking any agreement with your employer (or former employer) about the payment of employment tribunal fees. However, it you are reimbursed for fees that your employer then paid to you in a settlement agreement or COT3 agreement, you may have to give this back to your employer.
*Will the Government bring in a new set of fees?
It’s a question that will no doubt be considered. Ultimately, the Supreme Court did not decide that ‘fees’ were unlawful in principle – only that they had been introduced on a scale that made no sense and did not serve the purpose that was intended. As far as I can work out, there are no plans to introduce a replacement set of fees any time soon – the Government is tied up with Brexit, and at a time when it does not have a majority, is unlikely to tackle anything so contentious.
For now, we can celebrate as the Munchkins did – the wicked employment tribunal fees are dead. We’ll keep you updated with news of the fees refund scheme and anything else you need to know as the impact of the judgment takes practical effect.
From one of the UK’s most read legal blogs.