Following the abolition of employment tribunal fees, many questions remain. We will aim to clarify the situation as it currently stands.
When were tribunal fees abolished?
They were abolished on 26 July 2017, following a ruling by the Supreme Court that they were unlawful.
I have already paid tribunal fees – can I reclaim them?
The government is putting in place a system to reimburse those who have had to pay employment tribunal fees in relation to their claim. The details of the scheme are being prepared, with an announcement expected this month (September 2017).
My claim was rejected or dismissed for non-payment of fees – can my case be reinstated?
The Supreme Court also quashed the rule which required the tribunal to reject or dismiss claims which were not accompanied by the applicable fee. As a result, any such rejection or dismissal by the tribunal will almost certainly have been unlawful.
It is not yet known whether the government will introduce a particular system to deal with such claims, or whether the tribunals will do so, but some mechanism or scheme will have to be introduced.
In the meantime it is recommended you contact a solicitor to consider immediate action to protect your position, whether that is in the form of writing to the tribunal for confirmation the case is now accepted or reinstated, lodging a motion for reconsideration, or some other appropriate step. You should act immediately!
I decided not to bring a claim because of the fees involved – can I now bring that claim?
There are strict time limits for the lodging of claims. If you are still in time, then you should act without delay.
If you are out of time, we don’t yet know whether the government will introduce a system to deal with claimants who were dissuaded from lodging a claim due to the cost of the fees, but it seems highly unlikely.
If no system is introduced, anyone wishing to have a late claim considered by the tribunal may need to do so in the usual way, i.e. the lodging a late claim accompanied by an application for an extension of time. The tribunals have discretion to allow late claims, and each case will depend on its own facts and circumstances, in particular, the reasons why the applicable fees prevented the lodging of a claim on time.
It may be difficult to persuade a tribunal to allow a late claim under these circumstances, but it is theoretically possible.
ACAS early conciliation may be required before the lodging of a late claim – you should take advice on that before proceeding.
Could fees be re-introduced?
It is possible, yes.
The Supreme Court analysed only the lawfulness of the particular scheme previously in place. A different fees regime (for example, one which charged considerably less) might not be unlawful. It remains to be seen whether the government will seek to implement a new and revised scheme.
Even if one is introduced, it is highly unlikely it will affect any claims already under way or any claims lodged whilst no scheme was in place.
If you wish to discuss the abolition of Employment Tribunal fees or require any advice, please get in touch with our Employment Law Team.