Louise Taft of Freemans Solicitors highlights the practical implications of the Supreme Court ruling on tribunal fees:
In a lengthy judgment extolling the merits of access to justice, the rule of law and the wider public benefit of being able to enforce Employment law, the Supreme Court has confirmed that the Order implementing fees in the Employment Tribunal was unlawful. The Ministry of Justice have already confirmed that Claimants should now ignore any requests for payment of fees. The decision has therefore had immediate effect.
Steps will also need to be taken to arrange for repayment of fees to Claimants who have already paid them. That will be complicated in cases where Respondents have been ordered to repay the fees, and even more so in the many cases that have settled without direct reference to whether or not Tribunal fees have been taken into account.
As the introduction of fees led to what Lord Reed described as a sharp, substantial and sustained drop in claims, it seems inevitable that scrapping them will lead to an increase. We may find that claims do not creep back up to their previous level, as ACAS Early Conciliation is now available to parties to settle their disputes before claims are issued. We might instead find that more claims are settled via ACAS, as employers will no longer be able to gamble on workers being unable to afford Tribunal fees to take matters further. An increase of some sort does however seem inevitable.
There is further speculation that potential Claimants previously put off by the fees may now seek to bring claims out of time on the basis that they were prevented by doing so whilst fees were in force. That is likely to lead to satellite litigation to determine whether or not it was indeed the fee that prevented the claim at the relevant time and whether that is a good enough reason to disapply the usual time limit.
The Supreme Court did not decide that it would be unlawful to charge Employment Tribunal fees in principle, simply that this scheme is unlawful. It is likely that the Government will return to the drawing board and devise a new structure. However, with distractions from Brexit, it may take some time for a minority Government to pass the necessary legislation.
Current Employment Tribunal Claimants will no longer be required to pay fees to issue a claim or before their hearing takes place. The MOJ say they can ignore requests for payments.
Past Employment Tribunal Claimants will be able to reclaim any Employment Tribunal fees they have paid. They should wait to find out the practical mechanism to do this.
Anyone not able to bring a Tribunal claim because of fees who now wants to pursue this should issue a claim without any further delay. They will need to produce evidence as to why they didn’t bring a claim within the usual time limit, and ideally provide a short explanation on the claim form. A Tribunal will need to determine whether or not the claim can be allowed to continue.
Employers may find themselves statistically more likely to face Tribunal claims. In most cases, they should however receive advance notification of that possibility from ACAS. Early Conciliation is an excellent opportunity to engage with the possibility of a claim, seek information about the potential Claimant’s complaint and take advice on risk management.
*Louise is on Workingmums.co.uk panel of experts. You can contact her for advice via our Advice & Support page or by ringing 020 7935 3522 or emailing firstname.lastname@example.org. This advice was first published on the Freemans Solicitors site. Picture credit: Supreme Court c/o Wikimedia Commons.