Employment Tribunal Fees: Revived Claims

To much publicity, the Employment Tribunal (“ET”) fees regime was ruled unlawful by the Supreme Court on 26 July 2017. We still await full details from the Employment Tribunal of how claims, or proposed claims, affected by this decision will be dealt with, but at MLP our clients have already begun to see the implications of the decision.

Last week, one of MLP’s client’s, a large employer, received a letter from the Employment Tribunal notifying them of an ET claim against them, originally brought by a former employee in December 2016.

This claim has been served on the employer now because an earlier decision by the ET to strike out the claim at the time it was presented for non-payment of the fees had been overturned in light of the ruling that the fees regime was unlawful. The claim was reinstated automatically without the former employee’s knowledge, but upon contact from the ET and ACAS the former employee has confirmed that they wish to pursue the claim. As the claim was originally presented by the former employee within the usual time limits, it is now being allowed to proceed.

This was the first the employer heard of the claim, as the ET did not inform the employer of it at the time it was first presented and immediately struck out. The employer is now faced with the difficult scenario of having to defend a claim arising out of an incident which took place over 12 months ago. By the time the matter reaches a final hearing, more than 18 months is likely to have passed since the employee’s dismissal.

How should an employer deal with a revived claim?

Ensuring witnesses and key documents are still available is critical. In some cases, the witnesses may no longer work for the employer and may need to be ordered by the ET to give evidence.

Employers may also have grounds for applying for the revived claim to be struck out on the basis that it is no longer possible to have a fair hearing, given the passage of time. However, granting such an application would be a bold move by the ET, which must strike a balance of fairness between the parties.

How do I know if my business is at risk of a revived claim?

We recommend that all businesses undertake a full audit of any issues with employees since 2013, to identify cases where the employee indicated they would bring a claim, or where they were contacted by ACAS, but a claim never materialised. The claim could have been struck out and reinstated, as in the above scenario.

Reviewing matters in this way will allow businesses to plan for potential litigation, particularly by investigating whether crucial witnesses and documentary evidence is still available.

The claim mentioned above related to a former employee but it is entirely possible that claims brought by current employees could be revived in the same way.

Is there anything else employers need to think about?

The example above only applies to claims originally brought in time but struck out by the ET for non-payment of fees. However, there is also a category of employees who may have wanted to bring a claim at the correct time but were put off, or prevented from doing so, by the “unlawful” fees regime. We still await an example of how such a claim will be dealt with by the ET, but we anticipate that the ET will decide whether to allow such claims to be pursued out of time on the basis of the ordinary principles in relation to extending time limits for pursuing claims.

If you are concerned about being on the receiving end of a revived Employment Tribunal claim or have any questions or queries about the points set out above, please do not hesitate to get in touch our employment team on 0161 926 9969 or employment@mlplaw.co.uk. Also, don’t forget to follow us on Twitter @HRGuruUK for the latest employment law updates or to contact us to sign up for our monthly newsletter.