The
Judgment
As I am sure most of you are now aware, on 26 July 2017
the Supreme court ruled that the current Tribunal fees regime was unlawful.
This has resulted in a period of great uncertainty in employment law as the
government scrambles to implement a new, legal, fee structure as soon as
possible.
In the meantime, the government has committed to
refunding all Tribunal fees that have been paid and Tribunals have stopped
accepting ET fees until a new system is devised.
Unforeseen
implications
So, perhaps the biggest question that now remains is:
what about the Claimants who lost out on access to justice due to unlawful
fees?
Since the ruling a large number of claims have been
lodged in the Employment Tribunals which cite the Judgment in R (on the application of Unison) v Lord Chancellor. These
claims are being brought by individuals who had their original claims struck
out for not paying fees, or allege that they were unable to bring a claim due
to the cost of the fees. Clearly these Claimants have suffered due to the
unlawful fee structure that the government implemented. However, remedy for
these Claimants remains an unknown.
On 9 August 2017, the
President of the Employment Tribunal, Brian Doyle, made an order to stay all
claims citing the Supreme Court’s Judgment on fees, to await the decisions from
the MOJ and HMCTS on how to deal with the practical issues arising out of the
decision. However, the Stay was then lifted on 18 August 2017 without any
further clarification of any process to reclaim fees or the view to be taken on
“barred” claims. It has been stated, rather vaguely, by the government that
they hope to publish guidance on how to claim for refunds this month.
Arguably if the government
has already committed to repaying fees that were shown to deprive Claimants of
access to justice it would seem nonsensical to not also allow the Claimants
most directly disadvantaged by the fees some form of remedy as well.
Needless to say, the
implications of the Judgment are wide ranging and complicated. But regardless
of that, the government must now act quickly and efficiently to avoid any
further failure to provide access to justice for the Claimants now left in
limbo.
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.
