Whilst Unison’s judicial review
application in the High Court about the introduction of ET and EAT fees was
unsuccessful (for now) the Judgment in that case has shed light on the
likelihood of repayment of ET fees to a winning Claimant.
You’ll no doubt appreciate that
Claimants now need to pay ET fees to issue a claim and get a hearing (an
individual may have to pay as much as £250 to issue and £950 for a hearing, the
fees in ‘multiple’ group claims can be as high as £5,700 to issue and a further
£5,700 for a hearing).
The ET Rules are brief on the point of
repayment – they simply confirm that a Tribunal ‘may make’ an order requiring the employer to repay the ET fee
where the Claimant’s case succeeds, ‘in
whole or in part’. Note the ET fee is never repaid by the Tribunal.
This brevity has been cause for
enormous concern about the fairness of the new fee regime and the serious risk posed
by it in terms of lack of access to justice. This is because not only are the
ET fees very high, and so likely to deter would-be Claimants who need access to
justice, but if winning Claimants are unlikely to recover the ET fee why would
they bother going to Tribunal in the first place?
In the High Court, Unison managed to
eke some clarity out of HM Government – the Government ‘relented’ confirming, I imagine with great reluctance, that ‘the general position is that, if you are
successful, the respondent will be ordered to reimburse you’ (my
emphasis) with amended Guidance to be published (which I can’t yet find on the
Ministry of Justice website) and ‘consideration’
being given to amendment of the ET Rules. A good sign - no doubt a
clarification only given because of the very fact of the legal challenge in the
High Court.
Very helpfully the Employment Appeal
Tribunal has since stepped into the fray in the recent case of Portnykh v
Nomura International plc [UKEAT/0448/13/LA]; whilst this concerned the
possibility of repayment of an EAT fee, the ET and EAT Rules concerning repayment
of fees are very similar. In this case, the EAT ordered the losing employer to
repay the fee to the winning Claimant, identifying that the Rules give the EAT ‘the widest of discretions’ on fees and
that ‘a broad view’ should be taken.
The EAT pointed out that some factors weighed in the Claimant’s favour: the
Claimant’s sometimes unhelpful and uncooperative conduct did ‘not make any significant difference to the
conduct’ of the proceedings, the employer had the means to pay and ‘substantially lost’ the case.
So, where a Claimant behaves
reasonably in the proceedings, the employer has money to pay and, most importantly, the Claimant wins in whole or in part,
the omens look good for the Tribunal to require that the ET fee should be
repaid by the employer.
For further information on Employment Rights, please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.
