We have long argued that a Government scheme demanding fees from individuals to lodge a claim at an employment tribunal was an unacceptable barrier to justice and deeply unfair.
Now the Supreme Court has echoed our views, ruling these fees are unlawful and discriminatory, following a challenge brought by Unison.
Statistics show that since fees of up to £1,200 were imposed for claims such as unfair dismissal, equal pay and redundancy, there had been a 70 per cent drop in cases brought to tribunal. The court found that the provisions of fees were indirectly discriminatory because women were more likely to bring these claims.
Following the ruling, ministers pledged to scrap the fees and refund nearly £27million to around 250,000 people charged since July 2013.
The decision to abolish the scheme is therefore extremely important, but what does it mean for those looking to bring claims, those who have previously brought claims while the regime was in place and those who decided not to pursue claims due to the fees they would have to pay? The judgment was only handed down on 26 July and a number of questions arise:
Q: What does the ruling mean if I want to bring a claim in future?
A: There will be no requirement to pay an issue fee or hearing fee in respect of your claim or any subsequent appeal.
Q: What if I have already paid these fees?
A: People who paid fees when the regime was in place will be entitled to a refund and the Lord Chancellor has given an undertaking to this effect. What is not clear at this stage is how this will take effect in practice and what mechanism will be used. This is something that the government will need to consider and we are awaiting further information on this.
It is likely to take some time as there will be a large number of refunds to be dealt with. It is not clear if the refunds will be generated automatically or if individuals will need to apply for them. People will likely need to be able to evidence that they brought a claim and that a fee was paid. When a claim is issued it is given a case number by the Tribunal. This number will link to the case file which will show when the claim was lodged and whether a fee was paid. This number will be on all of the correspondence sent by the Tribunal.
There may be a form that people need to submit online to apply for a refund but this has not as yet been confirmed.
Q: What if I chose not to submit a claim because of the fees? Can I submit a claim now?
A: As well as ruling that the regime presented a barrier to justice, the Supreme Court has also ruled that the regime had a discriminatory impact on women. The fee regime applied certain fees to Type A claims and higher fees to Type B claims. Type B claims included discrimination and a higher proportion of women bring these claims than type A claims which means women were placed at a particular disadvantage when compared to men because of the fees regime.
If the fees discouraged you from bringing a claim then there may be scope to reopen your claim even if it is out of time. In certain cases a tribunal has discretion to extend time limits if it is just and equitable to do so. There would of course be the need to show that it was the fee that prevented you submitting a claim as opposed to other reasons. It is possible that the government will want to limit any out of time claims in order to support businesses.
Q: What if I need to submit a claim urgently? Can I still do this online and will it still require me to pay a fee?
A: If you need to file a claim urgently online then you should check the Tribunal Service’s site and follow any directions given there if the online service is not available. You should not have to pay any fee.
We will be providing further updates on this as things progress.
For a consultation with an employment law specialist, call Slater and Gordon Lawyers on freephone 0800 916 9060 or contact us online and we’ll be happy to help.
Brogan Solomon is an employment solicitor for Slater and Gordon Lawyers in London.