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Q & A: Today’s Supreme Court Decision on Tribunal Fees – Lorna Badham

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R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] EWCA Civ 935

What has been decided?

The Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013, the Statutory Instrument giving rise to the fees charged to bring and have employment cases heard, is unlawful.

The Supreme Court found that the Order prevented access to justice and was also unlawful under EU law. Higher fees charged on type “B” claims, including discrimination claims, were indirectly discriminatory.

What’s the government’s response?

Dominic Raab, the Justice Secretary, has said “we will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid.”

How will reimbursement work?

It will be an administrative nightmare.

It will be relatively easy to identify claims that were unsuccessful (in which Claimants will have paid the relevant fees). Harder to identify will be those cases where the Claimants originally paid the fees, but were successful and had those fees reimbursed by the Respondent. Bordering on the impossible will be the cases where the Claimant paid the fee but made an out of court settlement with the Respondent. This settlement may have included full or part payment of the fee.

The “arrangements” referred to by Raab may be an automatic bank transfer to the accounts which paid past fees, or may be a labour intensive manual exercise that looks back over all cases decided since the fees have come into force. The former would risk double recovery to Claimants who may have been reimbursed. The latter would take an inordinate amount of time and resources.

What will happen in respect of outstanding fees?

Tribunals should, following the ruling, immediately stop chasing unpaid fees or removing hearings from the list where there are fees outstanding. Judges should stop dismissing and striking out claims due to the non-payment of fees.

It remains to be seen how long the administrative processes of the tribunals take to respond to the ruling. The online system for submitting claims still requires fee payment by debit or credit card.

Will this result in more claims?

In the long term, yes. Fees deterred Claimants and resulted in a reduction of 66%-70% of claims (paragraph 38 of the Judgment). We should start to see the level of claims going up again.

In the short term, even more so. People who are out of time for bringing claims may well seek to argue that it was “not reasonably practicable” for them to bring a claim whilst the fees were in force (in respect of unfair dismissal cases) or that it is “just and equitable” to extend time (discrimination cases). They would need to act promptly.

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