Claimants who had to pay unlawful Employment Tribunal fees are still owed millions by the Government. At the end of 2017 Justice Minister Dominic Rabb said that only £1.8 million of an expected £33 million has so far been paid back by the Government. At the time of giving evidence to the House of Commons Justice Committee in December the Justice Minister said that approximately 2,600 applications had been approved out of 4,689 applications received.
It is clear that more needs to be done to raise awareness of the refunds available. If you paid fees to the Employment Tribunal or Employment Appeals Tribunal between 29 July 2013 and 26 July 2017 then you may be eligible for a refund.
Applications can be made by post or online at: https://www.gov.uk/employment-tribunals/refund-tribunal-fees.
For those who lost out because they decided not to bring a claim because of unaffordable fees, the Government has not put any special mechanism in place. The general consensus is that you would need to act very quickly. The Employment Tribunal is incredibly strict about claims issued out of time but there is a way to apply to extend time using the “not reasonably practicable” test (eg. in unfair dismissal claims) and the “just and equitable” test (eg. in discrimination claims). You would likely have to convince a judge that you were genuinely dissuaded from bringing the claim because of the fees and provide evidence of your financial means at the time. The case of Benton v Give 2 Give (A Charity and Firm) (16 November 2017) is an example of a case relying on the Supreme Court’s decision to abolish the fee system. In this case the Tribunal decided that the claimant waiting 20 days after they heard abut the Supreme Court’s decision was “getting towards the end of the spectrum of a reasonable period”. The message here is that claimants who were put off by fees should seek legal assistance immediately.