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Employment claims and appeals to be reinstated following Supreme Court fees ruling

  • United Kingdom
  • Employment law - HR E-Brief

18-08-2017

Following the Supreme Court’s ruling that the fees regime for Employment Tribunal claims was unlawful, it is now clear that the government is taking steps aimed at reinstating all claims in the Employment Tribunal and appeals to the Employment Appeal Tribunal that were struck out in the last four years on the grounds of non-payment of fees. The Presidents of the Employment Tribunals have confirmed this to be the case for tribunal claims in a new Presidential Case Management Order issued today, which says reinstatement ‘will be dealt with administratively and almost certainly without need for judicial intervention or judicial decision.’ A clerk in the Employment Appeal Tribunal has told us that the same approach is being taken to dismissed appeals.

One consequence of this approach is that some employers could find themselves having to defend complaints about events that happened some years ago, even if their ability to oppose the claim has been compromised by the passage of time. Parties will be able to apply for a claim or appeal to be struck out of a fair hearing is no longer possible but that is usually a high hurdle to overcome.

It is arguable that the automatic reinstatement of all claims and appeals is outside the powers of the Tribunals and the Employment Appeal Tribunal and it is likely that we will see challenges from parties facing revived claims and appeals.

Employers are also likely to receive out of time claims from workers who say they were deterred from bringing a claim in time by the need to pay fees. In new cases like this a tribunal will have to consider whether the usual criteria for extending time for claiming are satisfied. It will be interesting to see whether concerns about opening the floodgates will cause tribunals to be cautious about allowing such claims to proceed.

Finally, the Government has said it hopes to be in a position to confirm details next month of its scheme to reimburse those who have paid fees in the last four years. It appears that the party that paid the fee will have to apply for a refund, probably within a certain time limit. It is possible that the reimbursement scheme will be extended to parties who had a costs order made against them relating to fees and who paid the amount owing.

 

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