Following the Supreme Court’s ruling that fees in the employment tribunal were unlawful, the Ministry of Justice (MoJ) and Her Majesty’s Courts and Tribunals Service (HMCTS) have now launched the employment tribunal fee reimbursement scheme.
There will be a phased implementation of the scheme, under which HMCTS will invite approximately 1,000 eligible parties to apply for reimbursement. Full roll-out of the scheme is expected in four weeks.
Successful applicants will also receive interest on the fee that they paid at the rate of 0.5%, calculated from the date of the original payment up until the refund date.
For those who paid a fee but who do not receive an invitation to take part in the initial stage can pre-register their interest in applying for reimbursement. Pre-registration can be done by email or post (details of which are on the MoJ website).
The MoJ and HMCTS have said that further details of the scheme will be made available when it is rolled out fully. While not stated in the announcement, we understand that the key details of the scheme will be:
• It will cover both employment tribunal and employment appeal tribunal fees.
• It will be open to both claimants and respondents who paid fees.
• It will also be open to respondents who were ordered to pay a claimant’s costs. The respondent will have to evidence that a costs order was made and paid.
• It will not be open to respondents who compensated a claimant for their tribunal fees under a settlement or COT3 agreement.
• Applicants under the scheme will have to sign a declaration confirming their entitlement.
The MoJ and HMCTS have not yet announced how they intend to deal with claims that were rejected or dismissed for non-payment of a fee. Although we understand that HMCTS will be writing to affected claimants asking whether they wish for their claim to be reinstated. It is estimated that there are approximately 7,500 such claims.
It was strongly suggested by the Case Management Orders published by the Presidents of the Employment Tribunals on 18 August 2017 that the decision could cover claims that were never brought because, for example, the claimant was deterred from doing so because of fees. It is our understanding that the MoJ and HMCTS’s scheme will not cover such circumstances, which means that if a claimant now makes such a claim it will be dealt with under normal judicial principles for out-of-time claims.