Many will be aware from the press and social media that on Wednesday 26 July 2017, the Supreme Court in R v Lord Chancellor 2017, held that the requirement for claimants to pay fees to bring claims in the Employment Tribunals and appellants to appeal to the Employment Appeal Tribunals were unlawful. Many will also be asking what to do about it if they have been affected.

Refund of Tribunal Fees

All claimants and appellants who have paid tribunal fees will be entitled to a refund from the Lord Chancellor. Respondents who have been ordered to reimburse the Claimant or Appellants for the tribunal fees will also be entitled to a refund. Due to the administrative burden upon the Tribunals, we do not expect refunds to be made any time soon.

The process for refunds has not yet been confirmed. The Employment Tribunals may contact the affected individuals or their representatives depending on who paid the fee. Those affected would be well advised to keep an eye on the employment tribunals’ and relevant government websites for any instructions about the need to apply for a refund, and to get in touch with their representatives for instance to provide new contact details.

Opportunity to bring claims now

Claimants who were deterred from bringing a claim because of the Employment Tribunal Fees payable, may be able to bring their claims now. This is likely to be relevant to those Claimants who have been deterred from bringing claims more recently or are still suffering financially or otherwise because of the Respondent’s conduct. However, there will be several hurdles to overcome.

Time Limit

The usual time limits to bring claims in the majority of cases will have expired. However, the Employment Tribunals have discretion to extend time limits and accept claims either on the grounds that it was not reasonably practicable to bring the claim in time or, in relation to discrimination claims, on the grounds that it is just and equitable to extend time. It remains to be seen whether the Employment Tribunals will entertain extending the time limits for claimants who were deterred from bringing their claims because of the tribunal fees.

If the Employment Tribunals are prepared to entertain accepting such claims, claimants will need to satisfy the tribunal that they were deterred from bringing their claim because of the tribunal fees rather than some other reason such as the legal costs. This will not be easy although it may be easier for Claimants who had claims for fixed compensation for relatively small amounts e.g. holiday pay or unlawful deduction from wages. Claimants who can demonstrate that they previously applied for ACAS conciliation are likely to have more chance of persuading the tribunal to extend the time limit.

Evidence

The strict time limits and condensed period within which a Tribunal timetable runs, are designed to ensure that cases are heard relatively quickly, given the nature of the claims.

The tribunals have an overriding objective to deal with cases justly and this includes ensuring that both the claimant and respondent are on an even footing. The parties may be faced with evidential difficulties. Memories will have faded; documents often in possession of the Respondent may no longer exist and witnesses within Respondent organisations may have moved on. In these circumstances, it will be difficult for the tribunals to ensure that both the claimant and respondent have a fair hearing.

In practice, we do not expect to see many claimants rushing to the Tribunals to bring claims. Many will have moved on with their lives or secured alternative employment, which could reduce the amount of financial losses suffered. However, for those who were denied access to justice and continue to suffer significant financial loss or injury to feelings or those more recently deterred, there may the opportunity to seek redress if they act fast.

Ultimately, it will not be possible to see how the Employment Tribunals approach this issue until test cases are brought.

Springhouse will be following developments closely.