The government has started the slow process of refunding up to £32.5 million to parties who have paid ET fees. Respondent businesses who have repaid fees can apply – but only in limited circumstances.
Background
In July the Supreme Court abolished Employment Tribunal and Employment Appeal Tribunal fees, and ruled that the fee regime was unlawful. This meant that no-one should have been asked to pay a fee, and those that did are entitled to be refunded from the government.
The pilot scheme
The task of refunding everyone is enormous, and we raised a number of questions about how this could work in our August bulletin. The government has, probably sensibly, decided to undertake a four week pilot scheme to see how the process works, and (hopefully) iron out any glitches before it is extended.
During the pilot, the government will contact up to 1,000 claimants individually to ask them to fill in a form. We understand that these applications will be made on a fillable PDF form which can be emailed or printed out and posted to HMCTS. Subsequently, the mechanism for fee reimbursement will allow an online application process.
The pilot started on 16 October and will, therefore, end soon.
What information has to be provided?
Claimants will have to:
• Provide details of their claim
• Provide a bank account for the transfer to be made
• Certify that they have not already been reimbursed the amount of the fee by the respondent or their trade union, or in some other way (such as via insurers).
How to apply for reimbursement
The vast majority of individuals and organisations who have not been invited to take part in the pilot can pre-register their interest by email at: ethelpwithfees@hmcts.gsi.gov.uk; or alternatively by post to the following addresses:
For proceedings in England and Wales:
Employment Tribunal Central Office (England and Wales)/Employment Appeal Tribunal (EAT) Fees PO Box 10218
Leicester LE1 8EG
For proceedings in Scotland:
Employment Tribunals Central Office Scotland/Employment Appeal Tribunal (EAT) Fees
PO Box 27105
Glasgow G2 9JR
Can respondents apply for reimbursement of fees?
Yes, but only where they have been ordered by a tribunal to repay fees and can prove they have done so.
What about fees repaid to claimants under the terms of a settlement agreement or COT3?
Unfortunately, respondents will not qualify for reimbursement under the scheme and may not be able to recover these fees at all.
The pilot currently requires claimants to certify that they have not already been reimbursed by the respondent – presumably to make sure that claimants don’t make a profit. This suggests that claimants who have been reimbursed by respondents will not be able to apply, even if they are motivated by an altruistic or contractual requirement to repay the respondent. If that is correct, it leaves respondents without an obvious remedy to recover monies paid out.
Even if this changes, most claimants who are not out of pocket because their former employers have repaid fees to them are unlikely to want to go to the trouble of seeking repayment. This will leave employers wishing to recover fees having to contact claimants to try and reach an agreement on repayment – something few will relish.
Should respondents who have paid fees register their interest now?
Yes – but only where fees have been paid following an order of the tribunal.
Is interest payable?
Yes. Interest of 0.5% will be added to the fee charged from the date the fee was paid.
Published: 7 November 2017
Employment Law Update - November 2017
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