Following the Supreme Court deciding the tribunal fee system was unlawful, fees were no longer payable to submit a claim from 26th July 2017. The Lord Chancellor previously undertook to reimburse all fees paid if the scheme was successfully challenged and, following the decision in R (on the application of Unison) v Lord Chancellor, announced that reimbursement of fees totalling £32.5 million would take place.

Trial reimbursement scheme launched

From 20th October 2017, Her Majesty’s Courts and Tribunal Services (HMCTS) launched a trial fee reimbursement scheme. Over a 3-4 week period, HMCTS will contact around 1,000 claimants who are eligible for reimbursement. The claimants will fill in a form with details of the payback they believe they are entitled to and send this to HMCTS to reclaim. An online application form is currently under development to speed up the process.

Once the trial period has ended, the scheme will be open to all claimants and unions who believe they are entitled to a fee reimbursement. Respondent employers will also be able to apply for payback where they have paid a fee as required by the previous rules, or where they complied with an order of the tribunal to reimburse the claimant. The scheme will not apply where respondents reimbursed the claimant’s fee outside of the tribunal system, such as through a settlement agreement, and this will be a matter for the parties to resolve.

Scheme to reinstate claims struck out for non-payment of fees

On 17th October 2017, HMCTS announced a scheme would shortly be launched to reinstate tribunal claims that had been struck out for non-payment of fees.

HMCTS will write to approximately 7,500 claimants who had their claims struck out because they failed to pay the issuing fee at the outset or later failed to pay the hearing fee. This letter will ask the claimant whether they want their claim to be reinstated in the tribunal system. A similar process is currently ongoing with Employment Appeal Tribunal appeals where nine out of ten appellants are opting to have their appeal reinstated.

Claims not lodged because of fees

The reinstatement scheme will not apply where potential claimants did not bring a claim at all because they were put off by fees, or knew they could not afford these.

The only option available for these individuals is to submit a claim out of time and seek an extension of the time limit at tribunal. To do this, they will need to evidence their reasons for failing to bring a within the time limit, such as proof of their inability to pay fees, and also explain any delay in submitting their claim since fees were removed.

The future of fees

The Justice Secretary, David Lidington, has recently confirmed the government is looking at reintroducing fees to cover costs and deter “frivolous litigation”. He explained the government would need to get the balance right for access and affordability.

If fees are reintroduced, these are likely to be much lower than set previously so will not have a substantial impact on the numbers of tribunal claims being lodged. The government may also reconsider the fee remission thresholds to ensure those on lower incomes, or in disadvantaged groups, can submit claims through the tribunal system; this would be one method of getting the balance right.