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Is a Claimant "in the money?"

BY Paul Deans
Employment Law & HR
BG Purple

Where a Claimant is successful at tribunal, does that automatically mean they will recover their tribunal fees from the respondent?

It appears not. 

Since 29 June 2013, employees who bring a Tribunal claim against their employer have been obliged to pay an issue fee and where the case proceeds to a hearing, a hearing fee. At the Employment Appeals Tribunal the issue fee to be paid by the claimant is £400 and the hearing fee £1,200. 

As a result of the Lord Chancellor’s statement in Unison’s judicial review of tribunal fees, it was understood that a successful claimant could generally expect to recover from the Respondent, tribunal fees which they had to incur. 

However, in the case of Old v Palace Fields Primary Academy the Claimant was not awarded recovery of the issue fee and received an award for only half of the £1,200 hearing fee. 

In this case, the Claimant was dismissed for allegedly encouraging the bullying of one of her pupils. The Claimant appealed the decision. 

While at first instance the Tribunal found the dismissal to be fair, the Employment Appeals Tribunal decided there had been procedural faults and therefore allowed the appeal and remitted the case back to the Tribunal to decide if the procedural irregularities rendered the dismissal unfair. 

The Claimant appealed the decision on the basis that firstly, two witness statements taken by the Respondent were not disclosed to her during the disciplinary process, and secondly, minutes of two interviews held with the Claimant herself were not provided to the Claimant who was told these would not form part of the disciplinary panel’s deliberations. The Respondent’s failure to disclose material which favoured the Claimant’s case, and the fact that the disciplinary panel did consider minutes of meetings not disclosed to the Claimant meant that the appeal was successful. 

As the EAT did not overturn the original decision, rather it was remitted back to the Tribunal, the appeal was only partially successful and so the Judge used the wide discretion afforded to him to award reimbursement of only part of the fees. 

While this is a cursory lesson to employers on the importance of following a fair procedure, it does give some comfort that where an employer is unsuccessful at tribunal, they won’t necessarily be liable to pick up a Claimant’s fees.

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