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Winning Expenses in Employment Tribunal Cases

EMPLOYERS who lose Tribunal cases should have to repay up to £1200 in fees as well as the employee’s wage loss, according to a new court ruling.

Figures show a fall of more than 70 per cent in cases being brought before Employment Tribunals since the introduction of the controversial Tribunal fees last year.

Research by Citizens Advice in England found that cases of unfair dismissal, withholding of wages and refusal to pay holiday pay which appeared strong were not taken forward because the new rules meant fees of up to £1200 must be paid before the merits of the case could be looked at by a Judge in a hearing.

Analysis of 182 cases by the charity over a six-month period found a 73 per cent drop, and the majority of the affected employees said they simply could not afford to meet the Tribunal fees. Among these was a kitchen porter entitled to holiday pay of just under £300 who dropped his case after being told that he would have to pay fees of £390 to have a hearing.

Prior to the introduction of the fees, the Tribunal system had operated as a “no costs” environment, which means each side simply paid their own way. Although the Tribunal has long had the power to award expenses, this was usually only granted in extreme cases, such as proven dishonestly by a witness.

But the Employment Appeal Tribunal has now emphasised that, if a case succeeds, the employer will have to fork out whatever the employee has had to pay to get there, on top of the usual Tribunal award. The case of Horizon Security Services v Ndeze & PCS may provide reassurance to employees who feel they have a strong case, that they will ultimately be able to recover their costs.

Lady Justice Eady found that the  fees had “changed the landscape” of the Tribunals and Appeal Tribunals, and it would now be unfair if a party whose case was opposed, and who had to pay these, was not reimbursed if the court found in their favour.

The case followed an earlier EAT ruling on the issue that: “…where … there had been substantial success, payment of the equivalent of the full fees should be the usual outcome.”

The Government had introduced the fees, at least in part, to deter claimants who had weak cases, but their dramatic effect has led to concerns that it has only encouraged unscrupulous employers.

“Employers are getting away with unlawful sackings and withholding wages. The cost of a case can sometimes be more than the award achieved, and people can’t afford to fight in principle” said Gillian Guy, chief executive of Citizens Advice.

Employees who have found new jobs or who have substantial savings have no choice but to pay the fees upfront. But those who are on a low income or benefits may be exempt from the fees.

Contact Us

The Glasgow Law Practice advises claimants and employers on cases, including whether the fees need to be paid, and when. We also represent claimants and employers at Tribunal hearings in Glasgow and elsewhere. Legal aid can also be made available. Contact ss@theglasgowlawpractice.co.uk.