Will the abolition of Employment Tribunal fees result in ‘old’ 2013-2017 cases being permitted in Tribunal?

Employment Tribunal fees are illegal. This was declared on 26th July 2017 by the Supreme Court in R (on the application of Unison) v Lord Chancellor. Put simply, from that day onwards, Employment Tribunals completely scrapped both issue fees (the fee for submitting a claim form to Tribunal) and the hearing fee (the fee incurred 3 weeks before a final hearing date) due to their illegality.

Unfortunately, however, it’s not that simple. This is because tribunal fees were ruled to be ‘unlawful’. This means that all previously obtained Tribunal fees from the introduction of the fees in 2013 onwards were illegally obtained and must be paid back. Now, whilst that sounds simple, in reality, it’s far from it.

Why? Well, to start with, employees bringing group actions through one main claimant paid a combined fee. So, how do you handle returning a split fee to each applicant (particularly in situations where some settled and others continued to final hearing)? Also, many COT3 (ACAS brokered) agreements (the legal document by which parties agree to settle claims) provided for employers to repay the equivalent of the employee’s tribunal fees to the employee on top of their separate settlement amounts; do those employers now have the right to claim that portion back from Her Majesty’s Courts and Tribunals Service (HMCTS) upon simply producing the relevant paperwork?

The only comment from HMCTS so far is that a system for reimbursing fees will be announced soon, hopefully by September. Until that date, there is uncertainty as to what will happen.

The biggest question, however, is what happens to the claims of employees who would have brought a claim but who were put off by the tribunal fees. It is undeniable that thousands of employees acted in this way – in this case the statistics don’t lie, namely that there was an appropriate 70% drop in Tribunal claims following the introducton of tribunal fees.

Usually, employees have a three month time limit in which to contact ACAS and then, allowing for time spent during ACAS Early Conciliation, issue a claim to Tribunal. However, many solicitors believe that the ‘unlawfulness’ of the Tribunal fees opens the door to former prospective claimants to bring post-2013 claims. Is this true?
The honest answer is ‘nobody really knows’ and, eventually, this question will be decided by tribunal judges.
One of the reasons this question hasn’t been effectively answered yet is partly due to the President of the Employment Tribunals issuing a universal stay on all claims linked to the ‘unlawful’ Tribunal fees judgment. This has, so far, prevented claims to tribunals asking this question.

However, one case, that of Dhami v Tesco Stores Ltd, slipped through the net. It did so because the case also included confusion over the effective date of termination by Tesco (which took it outside the stay imposed by the President of the Employment Tribunals).

In the Dhami case, the Claimant brought claims for disability and age discrimination against Tesco. However, her case was previously thrown out for non-payment of Tribunal fees due to her application for a fee remission being rejected. In the recent hearing, the Tribunal allowed her application for an extension of time in which to bring her case. Put simply, the Tribunal agreed that it was “just and equitable” (the legal test for extensions of time in employment tribunals) to do so in light of her case having been rejected due to unlawfully applied fees.

appalling incompetence by an employment tribunal, yet the claimant loses out

Elliott v The Joseph Whitworth Centre Ltd is a decision of the Employment Appeal Tribunal which demonstrates what can only be described as an abject failure of the judicial process. In his judgment His Honour Judge McMullen QC describes the chronology of relevant events as “sad and disappointing”. Mr Elliott had been working as a caretaker at a local community centre until he was dismissed on 6 February 2010. He presented a claim of unfair dismissal to a tribunal on 30 April that year – well within the three months’ time limit. Remarkably his claim was not sent by the tribunal to his employer until nearly two years later. Ironically the Employment Tribunals Service was piloting a new computer system at the time – unfortunately named in this context Caseflow – and as is so often the case the system had in fact caused considerable administrative difficulties. Mr Elliott’s union representative was also at serious fault because he did not get round to enquiring about the progress of the case until February 2012. When he finally did, the tribunal sent out the claim form to the Respondent.
The Respondent filed a completed response but also applied to have the claim struck out on the ground that there had been such a long delay. In particular reliance was placed on Employment Tribunals Rules 18(7)(d) (claim not actively pursued) and 18(7)(f) (it is no longer possible to have a fair hearing).
Very surprisingly the employment judge who dealt with the strike out application did not consider any oral or written evidence. Nonetheless, based on consideration only of the claim form and the response, the judge decided that there could not be a fair trial. Pausing there, this is a remarkable conclusion to have reached, bearing in mind how long it can take cases to come to trial – often six years or more, particularly in the criminal jurisdiction. The judge decided that the delay of nearly two years was inordinate and, taking into account the errors by the employment tribunal and the claimant’s representative, inexcusable. I am bound to observe that, in this context, one person’s “inordinate and inexcusable” would appear to be another’s “routine and typical”. This was, on any reading of the matter, a remarkable let off for the former employer.