What’s happening with employment tribunal fee refunds?

On 26th July 2017 the Supreme Court overturned the employment tribunal fee regime which came into force in 2013. The Supreme Court described the fee regime as ‘unlawful and unconstitutional’ and said it was both preventing access to justice and indirectly discriminatory.

ACAS reported that prior to the 26th July decision, 64% of the notifications which ACAS received did not proceed to the employment tribunal. They accurately anticipated a significant change. Statistics released in December last year found that the number of claims that proceeded to tribunal rose by 66 percent in the three months after the fees were abolished, which demonstrates that the reversal had its intended effect.

On 20th October 2017 the government announced that all tribunal fees would be repaid to claimants or to the lawyers who had acted on their behalf, along with interest at a rate of 0.5%. Applicants were invited to pre-register an interest in applying before the full refund scheme was rolled out in November. Applicants were then to be contacted directly.

In December the government released a paper which provided analysis of the level of claims for refunds since the fee regime was abolished. At this stage, figures from the Ministry of Justice showed that the government had received 4,689 applications, processed 2,660 and refunded 2,151 payments.

I expect that the slow uptake is for the following reasons:

• The government will be inundated with claims for employment tribunal fee refunds;
• Some applicants pre-registered their interest in applying before the full refund scheme was rolled out. I imagine that these applicants will have been dealt with first;
• Those who did not register an interest in applying were to be contacted directly. Not all claimants will have got around to submitting their applications, particularly in circumstances where some time has passed since they initially paid the fees;
• Where the lawyer acting for the claimant made payment for the fees, the requirement is that they must submit the application for the refund. Law firms who are applying on behalf of multiple claimants might still be in the process of collecting the data/ submitting the application.
  

We submitted an application on behalf of all claimants we had acted for and who were entitled to the scheme. In the first instance we pre-registered an interest in the scheme. This meant that when the scheme opened in November, we were notified by email which prompted our application. Within two weeks of submitting our application, we received the refunds in full plus interest.

I expect that the government will continue to make its way through the list while applicants wait patiently for a rebate which I imagine they never expected to receive. I’m sure some will feel like they have hit the jackpot, especially in circumstances where their case concluded some time ago and they have effectively forgotten about the money spent!

If you paid fees at an employment tribunal or employment appeals tribunal between 29 July 2013 and 26 July 2017 and you haven’t already applied for your refund – why not? Just follow this link. The refund will either put you in the financial position that you were in prior to the proceedings or act as compensation for what might have been a difficult time.

*Emma Cartlidge is a Trainee Solicitor at Consilia Legal.

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