SLY Megan 3x3MORGAN Shelley 3x3Since the Supreme Court's decision in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 confirmed that the tribunal fees order introduced in July 2013 was unlawful, the government has been making payments to refund those who have paid employment tribunal fees.

To qualify for a refund, the fees must have been paid at an Employment Tribunal or Employment Appeals Tribunal in the period between 29 July 2013 and 26 July 2017.

In the Tribunals and Gender Recognition Statistics Quarterly for the period of October to December 2018 (published on 14 March 2019), the Ministry of Justice confirmed that they paid out refunds totalling £16,950,000 from the launch of the official refund programme in October 2017 up until 31 December 2018. Of the 21,800 applications that have been received, 21,300 refund payments have been made. However, it has recently been reported that there are still £16,000,000 in employment tribunal refunds yet to be paid.

In this article we outline when employers will be entitled to a refund and how to apply.

Who is entitled to an employment tribunal fees refund?

Any party who paid employment tribunal fees between 29 July 2013 and 26 July 2017 (the "Qualifying Period") is entitled to apply for a refund of the fees paid. This does not therefore only apply to Claimants. Employers may also be entitled to a fee refund if they:

  • defended any claims in any Employment Tribunal or Employment Appeals Tribunal in the Qualifying Period;
  • entered into any settlement agreements under which the employment tribunal fees were reimbursed to the claimant or paid on behalf of the claimant; and/or
  • were ordered to pay the claimant's costs by the Employment Tribunal or Employment Appeals Tribunal in the Qualifying Period.

How to apply for the refund?

An application will need to be made by email or post if employment tribunal fees were paid by an employer as a result of a settlement agreement or court order.

When making an application by email or post, what form should be used?

There are two different forms to be used depending on which category the company falls into.

If a claim was brought against the company and the company was ordered to pay someone’s fees, or the company paid any other fees to the tribunal, form 1/2-CR should be used.

If the company paid the fees for someone else to make the claim, form 3-S should be used.

In practice it is likely that the relevant form will always be form 1/2-CR where a company is reclaiming tribunal fees paid as a result of settling or defending a claim.

The forms to be completed can be accessed on the government website following the link here.

Where must the applicant send the completed form?

If applying by email or post, the completed form should be sent to either:

  • Employment Tribunal - England and Wales
    Customer Contact Centre
    PO Box 10218
    Leicester
    LE1 8EG; or
  • etrefunds@justice.gov.uk

What happens next?

The application will be considered and if successful, the refund will be made directly into the applicant's bank account alongside interest at a rate of 0.5%.

If you would like any further information on the above, then please read our previous In the news update on the scheme here or contact Megan Sly, trainee solicitor on megan.sly@footanstey.com / +44 (0)117 915 4910 or Shelley Morgan, senior associate on shelley.morgan@footanstey.com / +44 (0)1392 685 216