Following the decision of the Supreme Court on the unlawfulness of employment tribunal fees as they stood before that decision was made (as reported in our earlier article of 26 July 2017) and the subsequent decision to revoke employment tribunal fees going forward (at least until they may be reviewed), the President of the Employment Tribunal imposed a stay on employment tribunal claims seeking to rely on the Supreme Court’s decision. This effectively paused these claims before they could proceed any further.
Given the uncertainty of the impact of the Supreme Court’s decision and how the Ministry of Justice and Her Majesty’s Courts and Tribunals Service (HMCTS) may give effect to a surely massive sequence of refunds of tribunal fees taken since their implementation in 2013 (let alone organise a potential hearing or re-hearing of claims that had otherwise been rejected or withdrawn owing to the presence of tribunal fees), the Case Management Order of 9 August 2017 imposing the stay on proceedings was drafted in a very broad manner.
For instance, the wording suggested that it could potentially capture claims that were currently progressing through the tribunal where the claimants had paid or had yet to pay the relevant fees and were seeking a refund of those fees.
The Case Management Order itself sparked some fierce legal and judicial debate questioning, in particular, just how closely the courts and tribunals should allow themselves to be guided by government policy.
A new Case Management Order dated 18 August 2017 has been issued from the President of the Employment Tribunal amending the original Order to state that the stay on claims relying on the Supreme Court’s decision has been lifted, effectively allowing those claims to proceed again.
Also, and quite tellingly, the new Case Management Order states that “[t]he Employment Tribunal and its judiciary are separate from and independent of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service” as if to put paid to the debate on just how independent the employment tribunal and its incumbents are from relying on government policy.
For those whose claims were left in limbo by the original Case Management Order detailing that their claims either were or (more likely) may be stayed, this new Order at least provides some certainty in terms of allowing existing claims within the tribunal system to proceed. It does not, however, provide much certainty for those who decided either to withdraw their claims or not to bring claims because of the presence of employment tribunal fees.
This Order also only partially resolves the situation as employees and employers who have been ordered to pay tribunal fees will still be required to await an official announcement from the Ministry of Justice and/or HMCTS on how and when they may reclaim payments made in respect of employment tribunal fees.
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