A landmark judgment by the Supreme Court last month has ruled that the employment tribunal fee regime which has been in place since 2013 is unlawful. Prior to the ruling on 26th July 2017, employees wishing to take their employer to tribunal had to pay a fee of up to £1200. Subsequently, the number of cases taken to tribunal dropped by about 70% which led to some employers taking a tougher attitude to employee relations as the risk of a claim against them reduced sharply. The fees were declared unlawful by the Supreme Court because of the rights an employee has to take their employer to a tribunal, which was previously granted by Act of Parliament, therefore the Lord Chancellor cannot effectively take these rights away by introducing unreasonably affordable fees. However, the Supreme Court's ruling is that the fee regime established in 2013 is unlawful, not that any employment tribunal fees will be unlawful. It is possible that the government will introduce a new system of fees which do not have such a negative effect on employees enforcing their legal rights. This seems unlikely in the near future, with the government struggling with Brexit and the risk of further challenges to any new regulations. Those tribunal fees that were paid by employees between 2013 and 2017 will now be repaid by the government through a refund scheme. There are other repayment details which will need to be addressed such as how to reimburse if a tribunal ordered the employer to pay back the fees to the employee or the repayment situation if the fees were included in any settlement. Employees, and ex-employees, who might have brought claims during the four years the fees were chargeable, but were deterred by the cost, can now apply to bring the cases ‘out of time’. Discrimination cases are likely to be accepted more readily in these circumstances than unfair dismissal but, inevitably, there will be a large number of this type of retrospective case. If you are approached by an employee, or ex-employee, intending to bring a retrospective case then they will still need to contact ACAS and follow the early conciliation procedure as a first step.
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