Employment tribunal president stays fees challenges in wake of Supreme Court ruling

MoJ: working out what to do

The president of employment tribunals in England and Wales, Judge Brian Doyle, has issued a case management order staying claims brought on the basis of the Supreme Court’s ruling last month that the current fees regime is unlawful.

The order says the claims “shall be stayed to await decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the implications of that decision”.

Employment barrister Daniel Barnett said that although the order was “seemingly widely phrased”, meaning that in theory it could apply to any new claim brought by someone who might have not have brought a claim under the current regime but was now willing to do so, the preamble referred to rules 11 and 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

“Rules 11 and 40 contain the procedure for rejecting or dismissing claims that do not have the proper fee paid or remission granted,” Mr Barnett said.

“So the case management order appears to be aimed at staying applications by people who want to reinstate claims that were dismissed or struck out for non-payment of fees, until the Ministry of Justice and HMCTS have decided how to handle them.”

The order states that “any party or representative wishing to make representations for the further conduct of such claims or applications should do so upon application to the regional employment judge for the relevant employment tribunal region”.

In a strongly-worded ruling last month, the Supreme Court unanimously held that the order introduced in 2013 imposing employment tribunal fees was unlawful and breached both common law and EU rights of access to justice.

Lord Reed, who gave the leading judgment, said: “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.

“Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded.”

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