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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 07 AUG 2017

Employment Tribunal Fees - What Happens Next?

Employment Tribunal Fees - What Happens Next?
Jenny Marley
Veale Wasbrough Vizards

Last week we reported the Supreme Court's decision that the 2013 Employment Tribunal and Employment Appeal Tribunal fee regime is unlawful.

This article considers some of the questions which arise from that decision. Further information can be found in our article reporting on the decision.

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What Happens to Fees that Claimants Have Already Paid?

Whilst it is clear that fees paid by employees will be refunded, further guidance is awaited as to the process for this. Hopefully guidance will also be given on the following circumstances:

  • Where an employee has won their claim and the Employment Tribunal has ordered re-payment of fees by the employer
  • Where an employee has settled their claim and recouped payment of the fee from their employer by way of a COT3 or settlement agreement

It is not clear at this stage whether an employer will be able to apply for a refund of the fee where this has been paid to the employee under an Employment Tribunal Order or settlement.

What if an Employee Did not Bring a Claim Due to the Fee Regime?

There will be circumstances where an employee was put off or prevented from bringing a claim due to the fee regime and will now be out of time. It will be interesting to see how the government approaches such employees and whether they will be afforded the opportunity to submit a claim out of time.

Will the government Introduce a New Fee Regime?

The 2013 fee regime has been abolished but this is unlikely to mean the end of Employment Tribunal and Employment Appeal Tribunal fees forever. It is expected that the government will seek to introduce a new regime whereby the fees are set at a lower level or on a sliding scale depending on the amount sought by the employee so as not to prevent access to justice.

What Will Be the Effect on Employers?

This is difficult to predict. It seems likely that there will be an increase in backing of employees from trade unions as they no longer have the financial burden of supporting an employee through the fee regime.

It also appears likely that there will be an increase in the overall number of claims, particularly those which are of low value or where an employee has borderline prospects of success. This may well result in the slower administration of claims and hearing dates being set far in advance as the resources of the Employment Tribunals are put under pressure.

Combining these factors may result in employers being more risk averse, aware that employees have less of a financial barrier to bringing a claim.