A few weeks ago, we were delighted to bring you news that the Employment Tribunal fees regime had been scrapped . Not just scrapped – declared unlawful by the Supreme Court following a legal challenge by Unison. It was a great day for anyone concerned about access to justice. The fees were said to be introduced to free up the tribunal system by reducing unmeritorious (rubbish!) claims. In reality, the Employment Tribunal fees meant that many people, already vulnerable as the result of their employer’s behaviour, were denied the opportunity to obtain justice.
Immediately in response to the judgement, on 26th July 2017, almost 4 years to the day that the fees were introduced, the Government announced that it would refund all the fees that claimants had paid. Since then we have been waiting to hear the details of the refund scheme and how it would work – and at last, we have news!
Employment tribunal fees refund announced
Dominic Raab, Justice Minister, has announced that Phase 1 of the scheme to refund Tribunal fees has been launched. This involves the Government writing to 1,000 of the people who paid fees to bring a tribunal claim, to invite them to take part in the refund scheme. The initial phase will include people who contacted the Ministry of Justice directly about the refund.
As well as giving details of the initial phase of the scheme, the announcement on 20th October has clarified a number of other points:
- A pre-registration scheme is being set up in advance of the roll out of the full refund scheme in November for anyone not included in the first phase (see below for details of how to register).
- Interest at 0.5% will be paid on all fees that are refunded, from the date the payment was received.
- The initial phase will deal with less complex, single claims. The Ministry of Justice will work with Trades Unions during this period to work out how to approach refunds in larger multiple claims ready for the full roll-out of the scheme.
- The refund scheme will be open to everyone who paid Employment Tribunal fees, although in some instances, where the claimant is unable to recall details of the claim, or there is a mismatch with HM Courts and Tribunal service records, there may be a delay.
- Applicants will be required to sign a declaration of truth about the details they provide.
While full details of the refund scheme are not yet available, it is likely to be based on the claimant completing a form for consideration. Mr Raab has indicated that more details will be available when the full scheme is rolled out after the initial 4-week phase.
Refunds to those who ‘paid’ employment tribunal fees indirectly
It’s interesting to note that employers who were ordered to reimburse an employee claimant’s tribunal fees as part of a tribunal order will be able to claim the fees back on production of a copy of the order and proof of payment.
Trade Unions who paid fees on behalf of members will be able to reclaim them as long as they were not reimbursed, as will the lead claimant who paid on behalf of multiple claimants.
However, where the reimbursement of Employment Tribunal fees was included in a Settlement Agreement, the employer will not be able to reclaim the fees – but the employee will. Whether employers who have paid fees as part of a Settlement Agreement will have anything to say about this, we’ll have to wait and see.
The real wrong remains un-righted
While it is great to see the Government putting this scheme in place, the real tragedy in all this is the many employees who simply could not afford to pursue a tribunal claim during this period. They do not appear to have any recourse to justice, and were let down at a time in their lives when they will have been intensely vulnerable. The flip side of this, too, is the number of employers who were not called to account for unlawful behaviour that will have had serious repercussions for many of those affected.
Details of the Pre-registration scheme
If you paid tribunal fees during this period and have not been contacted as one of the 1,000 people in the initial phase, you can register your interest in applying for a refund by email – email@example.com; or alternatively by post to the following addresses:
Employment Tribunals Central Office (England and Wales)/Employment Appeal Tribunal (EAT) Fees
PO Box 10218
Leicester LE1 8EG
If you brought your case in Scotland, the address to register with is:
Employment Tribunals Central Office Scotland/Employment Appeal Tribunal (EAT) Fees
PO Box 27105
Glasgow G2 9JRX