Employers may be aware that the Supreme Court ruled on 26 July last year that Employment Tribunal fees were unlawful.

There was subsequently a debate about how Employment Tribunals would ensure that those who had paid fees to issue or progress claims would be reimbursed.

The Ministry of Justice (MoJ) and HMCTS subsequently rolled out a refund scheme on 15 November 2017 and affected parties are now able to claim their money back.

But what happens to claims which did not proceed because of the now illegal fee regime?

To date, there has been no public announcement about how the Government is dealing with claims which were rejected or dismissed for non-payment of a fee.

It was presumed that Employment Tribunals would write to those who had paid fees to prompt them to claim a refund. However it has become clear that Employment Tribunals are also proactively contacting individuals whose claims were rejected or dismissed because they did not pay a fee at the time to ask if they wish to reinstate their claim.

This could have serious and potentially unforeseen consequences for employers.If individuals issue new claims on the basis that they were previously dissuaded by the fees regime from doing so, they will be able to do so. However in many cases, such claims will be significantly out of time and employers will be able to argue that they should be struck out as with any other claim brought outside of the usual applicable time limit.

However where an otherwise valid claim was brought within the applicable time limit but was rejected for non-payment of the fee and is now being reinstated, this is not a new claim. It is an existing claim that has been resurrected. The implication is that the Employment Tribunal could (and in the writer’s view will) treat these claims as being brought within the requisite time limits and allow them to proceed, despite the fact that in some cases, this could mean claims are progressing several years after the complaint giving rise to the claim occurred.

It has been suggested that there may be around 7,500 claims which were potentially rejected or dismissed as a result of the fee regime. We know this as the Employment Tribunal holds records of the claims submitted and then rejected, even though the employer will never have known that such a claim was filed. It is however unknown how many additional potential claimants were dissuaded from bringing proceedings in the first place due to the fee regime being in place.

What does this mean for employers? Time limits are in place for a number of reasons, one of which is to ensure that disputes are fresh in the minds of the parties and to secure documentary and witness evidence. Claims proceeding so far out of time could therefore be difficult for employers to defend where personnel records have been deleted and witnesses to events no longer work for the employer.

Employers affected should take legal advice at the earliest opportunity if they become aware of a claim being reinstated to appreciate any potential defence they may have on the time points.What is clear is that rather than the employee having to actively bring a claim, they are being prompted to consider whether they wish to reinstate their claims.Employers may wish to blow the dust off those files that they had thought had been put to bed over the last 4 years as they may come back to haunt them.

If you would like any further information on the Employment team’s advice retainer service, or have been affected by a reinstated claim, please contact Alexandria Evans.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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