Campaign groups have called on the government to act as a matter of urgency to reimburse claimants who have employment tribunal fees, following the Supreme Court declaration that such fees were unlawful. Justice Minister, Dominic Rabb, had said immediately following the judgement that the government would take action so that claimants could be reimbursed, but so far no further clarification of this matter has been issued. Solicitors groups have warned that should the government make the arrangements for reclaiming fees too complicated, then this will only serve to further restrict true access to justice.
When were employment tribunal fees introduced, and why did the Supreme Court declare them unlawful?
Employment tribunal fees were introduced in July 2013 by a fees order made by then Lord Chancellor, Chris Grayling. They started at around £160, and increased to between £230 and £950 for further hearings. For certain claims, claimants had to pay up to £1,200. The Supreme Court chose to ignore and overturn judgements in both the High Court (2013) and the Court of Appeal (2015) on the grounds that the fees were introduced unlawfully, and that they prevented access to justice and were a violation of the constitutional right to access to courts and tribunals.
Following the court judgement, the Justice Minister said the government intended to take immediate steps to firstly stop charging fees for any new employment tribunal case, and secondly put in place arrangements to refund those who had already paid such fees, even though it was estimated that this could cost the government as much as £32 million. Mr Rabb said:
‘In setting employment tribunal fees, the government has to consider access to justice, the costs of litigation, and how we fund the tribunals.’
‘The Supreme Court recognised the important role fees can play, but ruled that we have not struck the right balance in this case. We will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid. We will also further consider the detail of the judgment,’ he added.
However, since that statement was made no further announcement has been made by the government about how, and when, these reimbursements will be made. All the Justice Department has said is that further details will be revealed in due course and that, in the meantime, any concerned party should refer to the minister’s statement.
Campaign groups and solicitor bodies call for urgent government reimbursement of employment tribunal claim fees
Richard Arthur, national coordinator for trade union strategy at Thompsons Solicitors, has called on the government to act swiftly and avoid any unnecessary delays:
‘They [the government] should provide clarity on when people can expect to be repaid and the mechanism for getting repayment. Is it going to be soon? If not the government needs to say so.’
Mr Arthur told the Law Society Gazette legal representatives would be best-placed to deal with the process swiftly and with certainty because they, of all people, would have a clear sense of who money was owed to, particularly in cases where there were multiple claimants. He estimated that the number of claimants due refunds for employment tribunal fees could run into the ‘tens of thousands’:
‘The government need to make this simple, they were called up in the judgment for denying access to justice. With that in mind they need to make sure the process for reclaiming fees is as quick and hassle free as possible, otherwise access to justice is denied even further.’
Claire Dawson, head of employment at Slater and Gordon, said the MoJ would have much to consider and would need to be careful and ensure it had accounted for the administrative burden before announcing details of any repayment:
‘Will it be automatic or will they put up an online form for people to fill out? They will also have to consider how people want to be re-payed, whether it be a cheque in the post or bank transfer,’ she added.