Employment Tribunal Claims Post UNISON Decision

The Supreme Court handed down its much anticipated decision in the Unison appeal on the 26th July. It determined the issue of whether the fees that had been imposed by the Lord Chancellor in respect of proceedings in the Employment Tribunal and the Employment Appeal Tribunal were lawful.

In short their Lordships decided that the Fees Order was unlawful, both under domestic and European Union law. This was because the Order had the effect of preventing access to justice; (paragraph 119) and, since it had that effect from its commencement, then it had been unlawful from the beginning and must be quashed. It was a nullity.

The Order, or to give it its full title – the Employment Tribunals and Employment Appeal Tribunals Fees Order 2013 had been introduced by the coalition government who explained at the time the purpose was to shift the burden from the taxpayer to those who used the service. The practical effect was to reduce claims to the Employment Tribunal by 70% and make the remission of fees for the less well-off an almost impossible task.

The immediate effect of the Supreme Court’s decision is that claimants who bring claims in the Employment Tribunal will no longer incur Tribunal fees. That much is certain. The amount of the fees received by March 2017 amounted to £29.9m. The Government has agreed to pay back all of the fees it has received, however there are many questions regarding the administration of the reimbursement and how an employer who has been ordered to pay a successful claimant’s fees may reclaim them.

What has become a focal point for employment lawyers and a subject of debate is the question of potential claimants who, but for the Fees Order, would have entered a claim, however were put off from doing so because of what the Supreme Court determined as an unlawful Order from the Lord Chancellor.  In other words, they were denied access to justice because of an unlawful act by the government. Can they now enter a claim and ask for it to be considered out of time.

The time limits to bring a claim is within three months from the date that employment terminated or in the case of discrimination, within 3 months of the discriminatory act complained of. These limits are under normal circumstances quite strictly adhered to.

However, the Employment Tribunal has a discretion to accept e.g. a claim for unfair dismissal out of time if it is satisfied that it was not reasonably practicable to issue the claim within the time limits.  Or in the case of a discrimination complaint, the Tribunal must decide if it would be just and equitable to extend the time limit.

It appears to me that on both criteria applied to late claims, being unable to afford the Tribunal fees is an arguable reason why the Tribunal or the Employment Appeal Tribunal should consider extending the time limit.

The question then becomes one of degree. Fees were levied from 29th July 2013. Taking the argument to its extreme, would it be a practical, or just proposition to pursue a claim against an employer after 4 years. Tribunals, like any other court, rely on evidence. Memories fade over time, hence the often used phrase – ‘justice delayed is justice denied’. In this case it is unlikely a fair trial of the issues could take place. Moving to the other end of the spectrum of claims – a potential claim which is only a matter of a week or so late and, where it is argued the reason was the unlawful fees order, then that argument is likely in my view to succeed.

My advice is that if you are a potential claimant in the position I have described the sooner you enter a claim the more likely you are to have it admitted out of time.

Where a potential claimant is in the position I described in the first scenario and is out of time beyond the point where it is still possible to argue a fair trial could take place, then the argument becomes one of lost opportunity. The claim would lie not against the former employer as respondent but against the government who imposed the unlawful order.

Following its judgment, the Supreme Court invited the parties to make written submissions on any consequential relief which may be appropriate in the circumstances.  On 9th August 17 the President of the Employment Tribunal of England and Wales, His Honour Judge Brian Doyle issued an Order that all claims or applications brought in the Employment Tribunals in England and Wales in reliance on the decision of the Supreme Court will be stayed to await the decision of the Ministry of Justice and HM Courts and Tribunals Service in relation to the implications arising from that decision.

If you think you have a potential claim which you were deterred from making because of the implications of the 2013 Fees Order, seek advice as soon as possible. Time really is of the essence.

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