On 8 March 2018, the quarterly Tribunals Statistics were published  for the period October – December 2017 showing:
- single claims received at the ET have increased by 90% - the highest since the introduction of fees;
- multiple claims received at the ET increased by 467%;
- 3,400 ET fee refund payments have been made, with a value of £2.8m. (The Ministry of Justice has previously estimated a total refund bill of £32.5m.)
The ET service has also been contacting claimants whose claims were struck out for non-payment of ET fees to ask if they want to reinstate their claims (Reinstated Cases). We are aware that administrative errors are occurring with this. In one case the Tribunal reinstated a claim which had been settled with an ACAS negotiated COT3 settlement, was withdrawn by the claimant and was formally dismissed by the Tribunal, after the Tribunal wrote to the claimant asking if she wanted her claim reinstated.
Employers should be aware that, as well as potentially having to respond to Reinstated Cases, claims that were never brought because of fees (Legacy or Lost Chance Cases) can now potentially be revived. Claimants might still have to first participate in the ACAS early conciliation process but there is nothing to stop them now doing so.
In Legacy or Lost Chance Cases, it will be a judicial matter as to whether such claims can proceed since the normal time limits for bringing such claims has expired. Factual analysis is required in each case to consider whether it was reasonably practicable for the claim to have been presented within the applicable statutory time limit (or in the case of discrimination claims if it would be just and equitable to extend the time limit), taking account of the asserted impact of the requirement to pay a tribunal fee on the decision not to pursue the claim, the point at which the claimant became aware that they had a legacy claim and how soon they then acted to pursue their claim.
Respondents will need to assess whether a fair hearing of the claim is still possible and make appropriate representations to the Tribunal based on the facts and circumstances in each case.
Please see below for our recommendations to manage these potential claims.