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So, employment tribunal fees are unlawful but what happens now?


After the flurry of activity from the July Supreme Court decision – that Employment Tribunal fees are unlawful – what happens now?


1.  It is unlikely that fees will be abolished entirely.  There is probably going to be a government consultation on a new fees regime with lower fees and/or fees payable by an employer in defending a claim.  Although with Brexit on the agenda, the government have higher priorities at the moment and run the risk of another judicial review with any new fee order that it introduces.


2.  The Tribunal Service must update the tribunal rules and the online claim form.  The online service has already been withdrawn for essential maintenance work to remove references to fees. During this period, anyone seeking to issue an Employment Tribunal claim will need to complete an ET1 form and submit it by post, or in person to the relevant office.


3.  The Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded.  This is easier said than done and raises many questions:

  • Will employees have to apply for refunds or will this be done automatically?
  • Many successful claims will have had fees ordered to be paid by the Employer, and there will probably need to be a manual trawl of all cases. In these cases, will employers have to ask for refunds from the employees once they have received their refund or will the employer be refunded by the government directly?
  • What about employees who paid the fee but then settled their claims? If they get a refund will the employers who settled be able to recover that part of the settlement representing the fee? Will they recover it from the employee or the Government?


4.  It is possible we will see a raft of old claims.  We might see people, who chose not to bring a claim because of the fees, argue that they were prevented from doing so because the fees were unlawful and try to bring their claims now.  Or potentially they could sue the government because they were unlawfully denied access to justice.


5.  Since fees were introduced, employers might have made risky decisions in relation to how they deal with workplace issues, hoping that their employees would be put off or unable to bring a claim because of the fees.  Following this judgment, employers might want to act more cautiously moving forward, certainly until we know what the new system is going to be.


6.  Unions used fees as the carrot to increase membership amongst employees.  With fees removed will unions see a fall in their members?


7.  The biggest question now is will employment tribunals increase by 70% back to 2013 levels and if so, can the Tribunal Service and ACAS cope?


Three words – “watch this space……”


For more information about Employment Tribunals please contact the Employment Team at Morgan LaRoche.