Reimbursement of Employment Tribunal FeesPublished on: 31 October 0017
As we have reported previously here, on 26 July 2017 the Supreme Court held that the employment tribunal fee regime was unlawful and must be quashed. Prior to the ruling the Government had already agreed that if the tribunal fees order was found to be unlawful, all fees would be repaid. At the time of the ruling, the Government issued a statement saying that they were working on the arrangements for a refund scheme and they hoped to be able to announce further details in September 2017. There has been a lot of speculation as to how the Government would administer this, as there were a number of difficulties to consider, such as how to deal with fees paid for multiple claims, and fees paid by respondents when unsuccessfully defending claims or as part of settlements before claims proceeded to a final hearing.
What happens now?
The first stage of the refund scheme has now been launched, confirming that as well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.
The Government will initially be contacting up to around 1,000 people, who will be given the chance to complete applications before the full scheme is opened up in around the next four weeks. It will also be working with trade unions who have supported large multiple claims.
Further details of the scheme are to be made available when it is rolled out fully, including details of how to apply for reimbursement. While not stated in the announcement, it is expected that the key details of the scheme will be:
It will cover Employment Appeal Tribunal (“EAT”) fees as well as employment tribunal fees.
It will be open to both claimants and respondents who paid fees.
It will also be open to respondents who had to pay a claimant a costs order in respect of the claimant's tribunal or EAT fees, if they can produce evidence that a costs order was made and paid.
It will not be open to respondents who compensated a claimant for their tribunal fees under a settlement agreement.
Applicants under the scheme will have to sign a declaration confirming their entitlement. This will include declaring that the applicant did not receive a costs award covering their tribunal fees.
The Government has announced that parties who have paid “employment tribunal fees”, but have not been invited to take part in the initial stage, can pre-register their interest in applying for reimbursement when the full scheme is rolled out. Those who wish to do so can register either by email at: email@example.com; or alternatively by post to Employment Tribunal Central Office (England and Wales) / Employment Appeal Tribunal (EAT) Fees, PO Box 10218, Leicester LE1 8EG.
The Government has said that the estimated cost of the tribunal fees refund, including interest, is £33 million.
Reinstatement of claims rejected or dismissed for failure to pay fee
The Government has not yet announced how it intends to deal with claims that were rejected or dismissed for non-payment of a fee or failure to apply for remission. Nevertheless, it is understood from HMCTS (Her Majesty’s Courts and Tribunals Service) that it will be writing to some 7,500 prospective claimants asking whether they wish for their claim to be reinstated.
With regards to claims that were never brought, for example because the claimant was deterred from doing so because of the fee they would have had to pay, it seems that if a claimant now makes such a claim it will be dealt with under normal judicial principles for out-of-time claims. Given that it is now three months since it was announced that employment tribunal fees were abolished, it will surely be particularly difficult for any such claims to secure admission out of time in respect of which a claim has still yet to be submitted.