Employment tribunal fees are no longer payable for claims brought now. Fees paid in the past are being refunded. This follows the Supreme Court ruling on 26th July 2017 that the fee system was unlawful.
Following the Supreme Court’s ruling (below) in July 2017, the employment tribunal fee regime in place since 2013 is unlawful, and has been since it was introduced. The decision was based primarily on UK constitutional law: that the rule of law requires people to have access to the courts unless Parliament has clearly said otherwise. For the old rules on fees, see Archive below.
Submitting a tribunal claim now
Employment tribunal claims can now be submitted without fees. www.gov.uk/employment-tribunals/make-a-claim
Refund of fees
Employment tribunal fees paid in the past should be repaid. Claims for refund can be submitted by those who paid an Employment Tribunal fee (or an Employment Appeal Tribunal fee): see Make a claim to an employment tribunal: Get a refund for tribunal fees (link to gov.uk).
If the employer was ordered by the tribunal to reimburse a fee paid by the claimant, and the employer can show it did so, the employer rather than the claimant can reclaim the fee. However if the employer reimbursed the fee to the claimant under a private settlement, it is the claimant who is eligible for the refund.
Announcements on the refund scheme:
- 15th November 2017: Applications open for employment tribunal fee refunds as scheme rolls out (link to gov.uk);
- 20th October 2017: Opening stage of employment tribunal refund scheme launched (link to gov.uk), with more more detail in a written statement by the minister Dominic Raab.
Increase in tribunal claims
Receipts of single employment tribunal claims were up 165% in the quarter April to June 2018, compared with the same quarter of 2017 (Tribunals and Gender Recognition Statistics, April to June 2018 (gov.uk)). 10,996 single claims were received in that quarter of 2018, most likely due to the abolition of employment tribunal fees. By contrast, during the period of operation of the fees (July 2013 to July 2017) receipts remained relatively stable at around 4,300 per quarter. The report also gives details of employment tribunal fee refunds claimed.
Past claims rejected, or never brought due to fees
It is understood that HM Courts and Tribunal Service have been contacting claimants whose claims were rejected or struck out for a fees-related reason, to ‘reinstate’ the claims (Judges Brian Doyle and Shona Simon in Senior President of Tribunals: Annual Report 2018 (pdf, link to www.judiciary.uk), May 2018.
On claims which were never brought at all while fees were in force, which claimants might now seek to bring outside the three month time limit, Judge Doyle says in that report:
It is not yet clear how many historic or legacy claims, other than those being reinstated, will be brought out of time in reliance on an argument that they were deterred or affected by fees in some way at the original time. Such claims will have to seek an extension of time, which will be decided judicially in accordance with well-established legal principles.
However, more than a year on from the Supreme Court decision, it will presumably be difficult now to argue that further claims may be brought out of time. In Benton v Give 2 Give (link to gov.uk) the employment tribunal allowed an unfair dismissal claim presented late, 20 days after the Supreme Court judgment.
Judge Shona Simon says in the Annual Report 2018 (above) that in Scotland hardly any claims outside the normal time limit had been received from individuals who previously decided not to make a claim because of the fees. Also at the time of writing only a small percentage of those in Scotland asked whether they would like to ‘reinstate’ claims had decided they wish to proceed.
- July 2017 article: Supreme Court rules that Employment Tribunal fees are unlawful – practical implications for Tribunal Claimants and employers (link to freemanssolicitors.net).
- There were case management orders relating to the consequences of the Supreme Court decision on fees for England & Wales and Scotland.
Fees in future?
The Supreme Court’s ruling is that the fee regime established in 2013 is unlawful, not that any employment tribunal fees will be unlawful.
The government might therefore pass regulations (or more likely issue a consultation on proposed regulations) to introduce a new system of fees which are more proportionate and affordable, and which do not have such a deterent effect on people enforcing their legal rights. However this seems unlikely for the time being, with the government busy on Brexit and the risk of further judicial review proceedings to challenge any new regulations.
Alternatively at some stage the government could propose an Act of Parliament, to be passed by Parliament, setting up or authorising a new fee regime. This might itself contain initial fee levels, and/or (legally possible if not necessarily politically) give express authorisation to override UK constitutional principles when regulations set fee levels. However such legislation would be politically contentious. It is therefore unlikely to happen at present when the government does not have a majority in Parliament. In any event it would probably not happen until after Brexit, when the fees could no longer be challenged under EU law (though the Supreme Court’s decision was based first and foremost on domestic UK law).
Supreme Court ruling
R (Unison) v Lord Chancellor (link to bailii.org), Supreme Court, 2017
The Supreme Court unanimously ruled that the employment tribunal fee regime in place since 2013 is unlawful. Significantly in view of Brexit, the court based its decision first and foremost on UK constitutional law rather than European law. It stressed the importance of the rule of law. Inherent in that is a UK constitutional right of access to the courts. ‘Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade’. The Supreme Court made clear that access to tribunals and other courts provides a service to society in general rather than just to individual claimants: for example resolving unclear issues of law, and society being aware that there is a remedy if legal rights are breached.
Accordingly, in the absence of clear authority in the relevant Act of Parliament, the Lord Chancellor cannot impose fees if there is a real risk that persons will effectively be prevented from having access to justice, and the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve. The court held that the current fee regime did not meet either of these tests. The court pointed for example to the long-term reduction of around 66-70% in claims accepted by tribunals. It said fees must be reasonably affordable, not just affordable in a theoretical sense. Also, rather than the fees deterring unmeritorious claims as intended there was now a larger proportion of unsuccessful claims; the fees had not encouraged settlement of claims as was intended, indeed they could deter employers from settling as employers waited to see whether the claimant would pay the fees; and it was elementary econonics that maximising the fees was not the way to maximise government revenue from them, given their deterent effect.
As regards enforcement of UK employment law which is underpinned by EU law rights (including most of UK discrimination law as it applies to employment) the fee regime was also in breach the EU law principle of effectiveness – namely that the procedural requirements for domestic actions must not be ‘liable to render practically impossible or excessively difficult’ the exercise of rights conferred by EU law.
Lord Reed’s judgment which which all the judges agreed dealt with the issues above. A shorter judgment by Lady Hale, with which the judges also agreed, held that the fee regime was also unlawful as being indirect discrimination.
Link: Comment: Brutal and elegant – tribunal judgment will resonate for years, by Paul Rogerson, 26/7/17
Archive: the old fees system which was ruled unlawful in July 2017
The fees system (no longer applicable)
Fees were payable for taking a claim to an employment tribunal, unless one is entitled to ‘remission’.
There were two levels of fee, depending on whether it is a Type A or Type B claim. Equality Act claims (and unfair dismissal claims) were Type B, which is the higher fee rate. For these the claimant had to pay:
- £250 to make a tribunal claim
- before a hearing (if the claim gets that far) an additional £950 hearing fee – making a total of £1,200.
There were some ways in which a fee may not be payable, or may be refunded:
- Some people on low income paid no fee, or a reduced fee. This is called fee remission.
- If the claim was successful, the tribunal would usually order the employer to reimburse the fee. See below Repayment by employer if claim is successful?
There were also other fees for various types of application, and a fee (payable by the employer) for mediation by the judiciary. There were special rules for claims brought by more than one person, such as equal pay claims.
The number of employment tribunal claims has fallen dramatically since the introduction of fees in 2013. In the year to June 2013, employment tribunals received on average just under 13,500 single cases (ie cases brought by one person) per quarter. From October 2013, after fees were introduced, the number of single cases has averaged around 4,400 per quarter. Source: House of Commons library Briefing Paper, November 2016.
Fee remission (no longer applicable)
From October 2013 the household’s disposable capital (savings etc) was relevant, as well as income.
You needed to pass both the capital and the income test (unless there are ‘exceptional circumstances’, see below). As regards capital, to get full remission on a fee of less than £1000 (normally any employment tribunal fee will be less than this amount), a single person with no children needed disposable capital below £3000. However if the claimant or their partner is aged 61 or over, there was a higher limit of £16,000. Some types of capital were disregarded, for example one’s main or only home.
The claimant also needed to qualify from the point of view of the household’s income:
- Remission 1: you got full remission of the court fee if you receive certain benefits, for example income-based jobseekers allowance, or Universal Credit with gross annual earnings of less than £6,000;
- Remission 2: you might receive either full or part remission based on the household’s gross monthly income. Eg for a single person without children the limit to get full remission of fees was £1,085. Up to a certain level the claimant then paid £5 of fee for each £10 above the monthly limit.
You didn’t need to send evidence of income unless asked for it. However if you were claiming on the basis of a benefit you had only recently started receiving (for example, in the last few days), the Department for Work and Pensions might not be able to confirm your eligibility when asked by the tribunal so you should provide a letter from the Jobcentre Plus. Also it was worth getting together documents to prove your savings and income in case the tribunal asks for them.
Even though not entitled to remission under the normal rules, you might be entitled to relief if there are ‘exceptional circumstances’. [link deleted]
It was possible to appeal against a refusal to allow remission.
The rules were in the Schedule to The Courts and Tribunals Fee Remissions Order 2013, SI 2013/2302.
Repayment by employer if claim is successful?
If the claimant was wholly or partly successful in their tribunal claim, the tribunal had power to order the employer to reimburse the fee to the claimant. The tribunal had a discretion whether to do this, but the intention was that the tribunal will normally order repayment if the claim is successful. The guidance in T435 says ‘The general position is that, if you are successful, the respondent will be ordered to reimburse you, but the tribunal has no power to order reimbursment of fees paid if you lose your case’ [link deleted]. For an example of a 2016 decision on repayment of Employment Appeal Tribunal fees, see Coletti v Borealis Driver Services, from paragraph 7, where the EAT awarded repayment of £1,800 out of £2,400 fees paid, to reflect the fact that not all the claimant’s appeals were successful.
Where a settlement agreement is reached, that agreement would deal with the fee.
Even where the tribunal ordered the employer to pay compensation and to repay the fee, the claimant bore the risk that the employer will not pay up. Employers often did not pay out compensation awarded, and an employer who does not pay the compensation owing will doubtless also not repay the claimant’s fees. See Remedies: Enforcement: will I actually receive the compensation? which links to some research on non-payment of compensation awards published in November 2013. Also Unison says: “research commissioned by the MOJ in 2009 found that of those awarded compensation by the Employment Tribunal, 39% had received nothing from the employer 42 days after judgment. One year after judgment 31% had still been paid nothing” (Date set for justice over tribunal fees (link to www.unison.org.uk)).
- House of Commons library Briefing Paper, November 2016. Includes links on the government’s post implentation review of tribunal fees (no conclusion yet published), and the House of Justice Select Committee inquiry into courts and tribunal fees.