As I am sure most of you are now aware, on 26 July 2017 the Supreme court ruled that the current Tribunal fees regime was unlawful. This has resulted in a period of great uncertainty in employment law as the government scrambles to implement a new, legal, fee structure as soon as possible.
In the meantime, the government has committed to refunding all Tribunal fees that have been paid and Tribunals have stopped accepting ET fees until a new system is devised.
So, perhaps the biggest question that now remains is: what about the Claimants who lost out on access to justice due to unlawful fees?
Since the ruling a large number of claims have been lodged in the Employment Tribunals which cite the Judgment in R (on the application of Unison) v Lord Chancellor. These claims are being brought by individuals who had their original claims struck out for not paying fees, or allege that they were unable to bring a claim due to the cost of the fees. Clearly these Claimants have suffered due to the unlawful fee structure that the government implemented. However, remedy for these Claimants remains an unknown.
On 9 August 2017, the President of the Employment Tribunal, Brian Doyle, made an order to stay all claims citing the Supreme Court’s Judgment on fees, to await the decisions from the MOJ and HMCTS on how to deal with the practical issues arising out of the decision. However, the Stay was then lifted on 18 August 2017 without any further clarification of any process to reclaim fees or the view to be taken on “barred” claims. It has been stated, rather vaguely, by the government that they hope to publish guidance on how to claim for refunds this month.
Arguably if the government has already committed to repaying fees that were shown to deprive Claimants of access to justice it would seem nonsensical to not also allow the Claimants most directly disadvantaged by the fees some form of remedy as well.
Needless to say, the implications of the Judgment are wide ranging and complicated. But regardless of that, the government must now act quickly and efficiently to avoid any further failure to provide access to justice for the Claimants now left in limbo.