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Money-back guarantee? Reclaiming employment tribunal fees if you win

Christopher Saunders - DAS Law

  1. 09 February 2015
  2. Employment
  3. 0 comments
Money in a jar

The introduction of employment tribunal fees has been a controversial move, with critics claiming that it will harm access to justice by discouraging wronged employees from making a claim. The options if the claimant wins, however, have received less coverage.

Employment tribunal fees were introduced on 29th July 2013 and their introduction has achieved the stated wide-reaching aim of reducing the number of tribunal claims brought by prospective claimants.

It is arguable that the reason for this drop is twofold; firstly, the ‘chilling effect’ on potential claimants who do not want to risk forking out the fee when they are not certain that they will triumph, and secondly, situations where claimants simply do not have the funds to bring a claim regardless of whether they want to.

In relation to this former group, prior to the introduction of the fees a claim to a tribunal was free of charge. Aside from the resultant waste of time, and the rather scarce possibility of a costs order being made against an claimant for ‘wasting tribunal time’ after bringing a claim with no merit, there was no real risk for the employee if they lost the claim.

Now a framework has been created akin to that of the civil process, whereby the loss of a claim may mean that an employee has to wave goodbye to a fee that may well cost in excess of £1,000. However, what is the position if an employee wins their case?

At present, according to recent case law (Portnykh v Nomura International plc UKEAT/0448/13) and the tribunal fee form “T435”, “the general position is that, if you are successful, then the respondent will be ordered to reimburse you, but the tribunal has no power to order reimbursement of fees paid if your lose your case”.

However, as emphasised by the guidance, potential claimants should bear in mind that a tribunal will have discretion to decide whether it is appropriate that the employer should reimburse an claimant whether in whole or in part, even if a successful claim is brought. For this reason, we would suggest that prospective claimants tread carefully and seek the appropriate legal advice before bringing a claim and potentially ‘losing’ a significant fee.

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