Employment Tribunal Fees – the employer pays?

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.

David Sorensen - Partner

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