'Administrative' solution to employment tribunal fee issues imminent

Out-Law News | 24 Aug 2017 | 12:08 pm | 1 min. read

A short stay on employment tribunal claims brought "in reliance upon" the Supreme Court's recent finding that the fee regime introduced in 2013 was unlawful has been lifted by the tribunal service.

The Ministry of Justice (MOJ) and HM Courts and Tribunal Service (HMCTS) will announce "administrative arrangements" to deal with fee reimbursements and the reinstatement of claims previously struck out for non-payment of fees "shortly", according to new case management orders issued by the presidents of the employment tribunals for Scotland (3-page / 76KB PDF) and for England and Wales (3-page / 140KB PDF).

The new case management orders were issued nine days after the employment tribunals suspended all such claims pending a further announcement from the government.

According to the latest announcements, it has now "become clearer" how the government intends to deal with the Supreme Court's findings in relation to tribunal fees.

"As a result, it is apparent that the reimbursement of fees and the reinstatement of claims rejected or dismissed for non-payment of fees will be dealt with administratively and almost certainly without need for judicial intervention or judicial decision," the judges said.

Applications for fee refunds and reinstatement of previously struck out claims will be dealt with in line with the administrative arrangements once these are confirmed, according to the case management orders. However, other matters arising as a result of the Supreme Court's decision, such as those which require judicial, rather than administrative, consideration, may now proceed in the normal way.

The Supreme Court ruled last month that the introduction of fees in 2013 to bring a claim in the UK's employment tribunals breached both domestic and EU law. Charging fees of up to £1,600 to bring a claim restricted access to justice and was also indirectly discriminatory, because the two-tier fee structure put women, who are statistically more likely to bring more complex claims such as for pregnancy discrimination, at a particular disadvantage, according to the unanimous judgment.