When employment tribunals (then “industrial tribunals”) were set up, access to them was free. If you wanted to bring a claim, you sent in a form, the tribunal heard the case, and in due course it told you whether you had won or lost, and if you had won, how much your employer would have to pay you. If you represented yourself, the whole process didn’t need to cost you anything more than your bus fare to the tribunal and a certain amount of postage.
That all changed in 2013. From 29 July 2013, if you wanted to bring a tribunal claim you had to pay two fees: one for starting the claim, and a second larger fee for the hearing. The total you’d have to pay depended on the type of claim: mostly for the simplest cases, you’d have to find £390; and for more complicated claims (including all unfair dismissal and discrimination cases), you’d have to pay £1,200. If your employer had underpaid you by a few hundred pounds, you’d be daft to gamble £390 (even if you had it) on getting it back, even if you really needed the money. In fact, the more you needed a few hundred pounds, the more you wouldn’t be able to afford to risk wasting £390. And if you had a complaint about dismissal – well, one of the consequences of dismissal is that you’ve just lost your income, so it wasn’t a good time to have to find £1,200.
As the government no doubt intended, employment tribunal claims plummeted: people who had claims against their employers didn’t bring them to the employment tribunals, because they couldn’t afford to.
The trade union Unison challenged the fees regime in the High Court, arguing that it amounted to an unlawful interference with access to justice. The challenge failed in the High Court and the Court of Appeal, but yesterday the Supreme Court ruled that the regime was unlawful. All the fees that employment tribunal claimants have paid for bringing their cases since 2013 will have to be repaid.
This is good news if you’re thinking of bringing a claim now, or if you have brought a claim in the past and paid a fee. Depending on individual circumstances, it may also be good news if you wanted to bring a claim, but were deterred by the fees; or if you had your claim rejected for non-payment of fees.
People who are thinking of bringing a claim now
If you’re thinking of bringing a claim now, it’s pretty straightforward: you don’t have to pay a fee. NOTE: THE ONLINE SYSTEM IS NOW BACK UP AND CLAIMS CAN BE LODGED — https://www.gov.uk/employment-tribunals/make-a-claim. The system was unavailable for a short period following the judgment while the requirement to pay a fee was removed.
People who have brought claims and paid fees since 29 July 2013
If you’re in this category, you should get your money back. It’s not yet been announced what the arrangements for repayment will be. I’ll post again here once the situation is clear.
People who have had their claims rejected for non-payment of fees
If you’re in this category, and you would like to try to pursue your claim, you should write to the tribunal asking it to list your case for hearing. The fee you were asked for should never have been charged, and the rejection was therefore unlawful.
You could write something like this:
[Your name] v [your employer’s name]: claim rejected for non-payment of fee
I enclose a copy of my ET1 form presented on [date], and the notification dated [date] that it was rejected for non-payment of a fee.
It has now been established by the of the Supreme Court in Unison v the Lord Chancellor that the fees charged were unlawful. It follows that my claim should not have been rejected. Please accept it now, and let me know what arrangements will be made for hearing it.
People who wanted to bring a claim, but couldn’t afford to, and are now out of time
If you were deterred from bringing a claim by fees, you may now be able to bring a late claim.
There are likely to be quite a lot of cases in this category. It’s not yet clear what will happen to them. Probably some will succeed, and some will fail.
Broadly, there are two kinds of situation in which you can bring a late claim. You can bring a discrimination claim outside the usual 3 month time limit (or 3 months plus the early conciliation period) if the tribunal decides it is just and equitable to hear your claim, even though it is late. Most other claims can only be brought late if you can show that it was “not reasonably practicable” for them to be brought in time.
The tribunals (and probably the EAT and the Court of Appeal) will now have to decide how to apply those rules in cases where potential claimants were deterred by unlawful tribunal fees from bringing their claims. If you want to try to bring a claim out of time for this reason, you should get your claim in as soon as possible now, and explain (probably in box 15 – ‘additional information’) – why the fees deterred you. If you haven’t already been through early conciliation, do that straight away, and put your claim in as soon as you have your early conciliation certificate.
Note of caution
Do think carefully about whether bringing a claim is the best thing for you to do. Just because you can now bring a claim without paying a fee, it doesn’t mean there are no costs: the emotional costs of bringing an employment tribunal claim are usually high. If you read the comments on this post, it will give you an idea of how distressing and futile some people find the experience.