The impact of the Supreme Court's decision that Employment Tribunal fees are unlawful

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Summary

The Supreme Court's decision in July 2017 abolished employment tribunal and EAT fees. At the time of writing the Government is still working out a system to repay paid tribunal fees, including to those parties that have paid the fee as part of a costs award. Notwithstanding the forthcoming announcement, the employment tribunals have already begun to deal with claims that on the face of it are out of time, having been re-issued now that no fee is payable.

Issues

We reported in our last issue of UK Employment Law Round-up that the Supreme Court had ruled the ET fees regime introduced in 2013 was unlawful (see here). The effect of this ruling was the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 and rules 11 and 40 of the Employment Tribunals Rules of Procedure 2004 (ET rules) were unlawful from the outset.

Following this, as expected, satellite litigation is coming before the ET. Out of time claims, which were initially rejected for failure to pay the issue fee under rule 11 of the ET rules, have been issued again before the ET.

Decision

It has been reported that the ET has accepted a claim which was presented out of time. In Dhami v Tesco Stores Dhami v. Tesco Stores the ET acknowledged the claimant's argument that it would be just and equitable to extend time to accept her claim as the first claim was rejected only because of the now unlawful requirement on her to pay the issue fee.

What does this mean for employers?

While at first glance this development seems to impact employees foremost, employers should also take note, particularly if a counterclaim has been issued.

Further guidance on administrative matters is awaited from the Government. The Government has said that it will put in place systems to reimburse persons who had to pay a fee. At the time of writing we do not have any further details; however, details of the system are expected to be announced shortly.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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