Tribunal Fees: Resurrecting rejected claims?

The Supreme Court decision on 26 July 2017 that Employment Tribunal fees were unlawful was expected to have wide-ranging repercussions.

This week, one further likely consequence of the decision has been highlighted.

Between July 2013 and July 2017, an issue fee was payable when an ET claim was started and a further fee was payable in order to proceed to final hearing.

At the issue stage, Claimants could submit their claim without paying and apply for the fee to be waived. For this application to succeed, the Claimant had to prove their income and/or assets were below a certain level. Claimants whose applications were unsuccessful and did not pay the fee would have their claims rejected or dismissed for non-payment of fees.

At the hearing fee stage, where the Claimant did not pay the fee and had not successfully applied for the fees to be waived, the claim would be rejected or dismissed.

Now that the fees regime has been found to have been unlawful from its introduction, there is an opportunity for individuals whose claims were rejected or dismissed for non-payment of fees to apply to the ET for their claims to be reinstated.

This week, the Presidents of the Employment Tribunals have ordered that decisions on this kind of case will be put on hold until the Ministry of Justice and HMCTS (the courts and tribunals service) decides how to handle this issue.

While this introduces new uncertainty regarding complaints which businesses probably thought were historic, it is important to clarify that it will not reopen matters which have been settled by settlement agreement or via ACAS.

If you are concerned about how this may impact you or your business, please contact our employment team.