1. What were employment tribunal fees?
In 2013 the government introduced fees to use the employment tribunal. Claimants had to pay up to £1,200 per case. Before 2013, there was no charge to use the tribunal.
2. What effects did fees have?
In a word, dramatic. The number of claims dropped by up to 70% and lower value claims, e.g. for holiday pay, unpaid wages and the national minimum wage were particularly affected.
3. What did the Supreme Court do?
It ruled that employment tribunal fees are unlawful and had to be abolished.
4. When does this take effect?
Immediately. It looks as if the government were expecting lose this case and have been planning for it. Most people make employment tribunal claims via the government website, this now says that you do not have to pay a fee although it may take time to update the online forms. You can also bring a claim by sending the form to the tribunal or delivering it by hand. No fee will be charged.
5. What happens if the tribunal are asking me to pay a fee?
You don’t have to pay. It might be wise to write back saying so and keep a copy of the letter or email.
6. What happens if I have already paid the fee? Can I get my money back?
Yes. The government has promised that anyone who paid a fee will be reimbursed. As yet there are no details as to how this compensation scheme will work, including for employers who lost a claim in the tribunal and had to pay the claimant's fee as a result. It is estimated that the government owes about £27 million in fees so it might take some time to sort out.
7. I wanted to bring a tribunal claim in the past but couldn’t afford to do so. What can I do?
This is the great unknown. Before fees were introduced there were on average about 60,000 employment tribunal claims a year. Under the fees regime that went down to an average of about 19,000 a year. Over four years, that’s about 165,000 so-called ‘lost claims’.
There are probably two possibilities. You could bring a claim to the employment tribunal. If you are within the three month deadline, there will not be a problem. However, many people will be outside the deadline. At the moment we don’t know how the tribunal will treat these claims. However, there are practical difficulties in dealing with a claim about something that happened years ago; memories fade, the relevant people leave, documents get lost, etc.
The other possibility is to bring a claim against the government who, by operating an unlawful fee scheme, prevented you from going to the employment tribunal.
If your claim to the employment tribunal is covered by European law, there is an established type of claim called a ‘Francovich’ claim against the government. However, you cannot tell easily whether a right is covered by European law, because almost all European law has been seamlessly incorporated into UK law. European law covers rights such as holiday pay or any discrimination complaint, including equal pay. However, many important employment rights, such as unfair dismissal and the national minimum wage, are not European rights. At the moment, we don’t know if you can bring a claim about these rights.
Whatever claim you make, you would have to show that you could not afford the fee and that you had a good chance of winning your tribunal claim.
8. I’m an employer. Is this bad news for me?
Not necessarily, it could be good news. Most people expect the number of claims to go up. Inevitably this will include a number of misguided or even vexatious claims.
However, there may well be a significant upside for employers - particularly small and medium size ones. Many employers want to the do the right thing; they want to obey the law and pay their employees properly. However, they are at risk that unscrupulous employers, who save costs by ignoring the law, will undercut them. It is hoped that the abolition of fees will make it much harder for unscrupulous employers to get away with sharp practice. This should, in principle, level the playing field for decent employers.
9. Will Brexit make a difference?
No. Although the Supreme Court found that the fees are unlawful under European law, they were very clear that the fees are also unlawful under domestic law. Therefore Brexit, in any shape or form, should make no difference.
10. Does this mean the employment tribunals will get busier and there will be more delays?
Perhaps, but it probably depends where you live. In some areas, for instance in London, delays are now little better than they were before the fees were introduced. If the number of claims goes up substantially, then we may see longer delays, at least in some regions.
11. There are fees to use other courts, will these be affected?
The Supreme Court did not find that all fees for courts and tribunals are unlawful. Many of our courts have charged fees for many years. However, it seems likely that claimants in other jurisdictions will be looking very carefully to see if they can challenge fees.
12. Does this mean the end of fees in the employment tribunal?
Possibly not. The government may well seek to introduce a more limited fee regime in future. For instance, the fees may be significantly lower or with more generous exceptions. However, expect any new fee regime to be challenged in the courts.
From the employment team at Saltworks Law