14 February 2014: From July 2013, Claimants have been obliged to pay a fee in the majority of cases of £250 to submit a claim in the Employment Tribunal and £950 before a full hearing. Although Claimants can seek remission from those fees, this has led to a drop off the number of claims being brought. Unison’s attempt to get these fees judicially reviewed recently failed.

Employers normally only have to pay a fee in the Employment Tribunal if they make a counter claim or if the case gets referred to Judicial Mediation. However if the Claimant wins does the employer then have to pay the fees back to the Claimant?

This issue came up this week in the EAT case of Portnykh v Nomura 2014 concerning the fees payable on appeal. The EAT had discretion to order the other party to pay the fees, but in Portnykh held that they would normally be payable. This was also mirrored in the Unison judgement.

Therefore if it loses, the employer would normally be expected to pay back to the Claimant the fees he or she had to pay to the Tribunal (of up to £1,200).

Therefore, the introduction of fees is a double-edged sword for employers which may welcome the reduction in claims, but might not want to stump up an extra £1,200 if they lose. Claimants will also seek to recover those fees in any negotiated settlement.

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