Case update (1): Annual leave and employment status

What do we already know?

We updated you in our June 2017 Newsletter Case update (1): Annual leave and employment status on the Advocate General’s Opinion in the case of King v The Sash Window Workshop Limited. 

The Advocate General’s Opinion was that a worker should be entitled to carry over untaken holiday when they have not been provided with a facility to take statutory paid holiday due to their being wrongly labelled as self-employed.   On termination of employment they should be paid in lieu of this entitlement.

What’s new?

The CJEU (formerly the ECJ) has followed the Advocate General’s Opinion.  It has decided that workers are entitled to carry over paid annual holiday until termination of employment in circumstances where they have not had the opportunity to take it.

The CJEU went as far as to say that where the UK Regulations are incompatible with EU law, they must be disregarded.  Employers who fail to give an opportunity for paid holiday should not be entitled to the benefits of the normal limits on how much can be carried over. I.e. liability for unpaid statutory holiday could go back years, rather than be limited by the UK two year limitation.

However, this decision only deals with the situation where workers have not taken annual leave because they have been led to believe it will not be paid. It does not directly address a case where workers have taken leave but not been paid for it (or have been underpaid).   Therefore its impact on the long-running holiday pay cases of Bear Scotland etc. is uncertain.  For further information on these cases see our updates here.

We explore this decision in more detail below:

Summary:   Should a worker, misclassified as a self-employed consultant with no facility to take statutory paid holiday, be entitled to carry over the untaken holiday and be paid in lieu on termination of employment?

Yes, is the CJEU’s Opinion in King v The Sash Window Workshop Limited available here.

Facts:  The worker, Mr King, was a commission-only salesman who was engaged by the employer, The Sash Window Workshop, from 1999 until his dismissal in 2012. He had taken time away from work each year but was not paid for any holiday. He claimed that he would have taken more time off if it had not been for the fact that (1) he had to give notice to ensure there were not too many salesman away at one time (2) if he did not work he did not get commission and (3) he was unaware of his entitlement to holiday pay.

Mr King brought a claim for unpaid holiday pay for the duration of his 13 years of employment.  This was despite the express wording in the Working Time Regulations 1998 (WTR) that there is no right to carry over annual leave. Claims for holiday pay must be brought within three months of the date on which a worker alleges that he/she should have been paid.

Sash Window Workshop therefore alleged that Mr King was out of time to bring claims in respect of leave from previous leave years.  In contrast, Mr King alleged that the reason he had not taken annual leave was that he would not have been paid for it and claimed that, under previous CJEU case law, he should have been entitled to carry over his leave from one leave year to the next and to be paid in lieu of all carried over annual leave on termination.

The Tribunal agreed that Mr King was a worker rather than being truly self-employed and upheld his claims. It agreed that Mr King should be paid for i) accrued but untaken leave from his final year of work; ii) the period of leave that he actually took during the time he worked for Sash Windows; and iii) the leave that he was entitled to take whilst working for Sash Windows, even though he did not in fact take it.

Sash Windows objected to the third finding; that Mr King should be paid for leave that he did not even try to take and appealed. The Employment Appeal Tribunal agreed with Sash Windows and effectively decided that a worker would first have to take unpaid leave; and only after having done so, could the worker test whether he would be entitled to be paid.

Mr King appealed again and the Court of Appeal referred both this question and the question of what leave can be carried forward and what compensation can be sought, to the Advocate General and CJEU.

The Advocate General decided that the EAT’s approach effectively gave the worker the task of creating an adequate opportunity before they could take paid annual leave. In his view was this was the wrong approach. It would be an unlawful pre-condition to impose on workers trying to take paid annual leave; and under EU law employers are legally bound to provide ‘adequate facilities’ to workers to allow them to exercise their rights to take paid holiday.

The CJEU agreed with this approach and set out very clear principles that workers:

  1. must know that they are going to be paid before they take leave;
  2. have the right to be compensated for untaken and unpaid leave; and
  3. can carry over and accumulate such untaken leave until the end of their employment relationship and there is no restriction on this.

These principles apply even if the employer wrongly believes that the worker is not entitled to paid leave.  Employers are under an obligation to correctly determine the status of their workforce and if they get it wrong they “must bear the consequences”.

The case will now return to the Court of Appeal for it to decide whether the WTR can be interpreted to give effect to the CJEU’s decision. The WTRs only provide workers with a remedy if they have taken leave which has not been paid either at the correct rate, or at all.  This is incompatible with the Directive.  There is a slim possibility that the UK courts and Tribunals could decide that the WTR cannot be interpreted to give effect to the ECJ’s decision and that the Government will need to legislate to bring UK law into line with the ECJ’s decision. However, this is unlikely and the UK Tribunals have typically considered that they can read words into the WTR to give effect to CJEU holiday pay decisions.

Comment: The case is likely to be of interest to any employers who use self-employed contractors with risky employment status. Most recently the spotlight has fallen on employers in the gig economy.  However, these organisations are not alone and we often see notionally self employed relationships that are indistinguishable from employee/worker relationships when you examine how they actually operate in practice.

If such wrongly classified staff are prepared to risk a finding that they are not self-employed for tax purposes, then this decision allows them to bring holiday pay claims going back a number of years.

However, it is worth remembering that this decision only applies to the 20 days holiday in each holiday year required under the Working Time Directive and not the additional 8 days holiday provided under the WTRs (i.e. the UK legislation) or any contractual holiday.

Although this decision does not deal with the situation where workers have taken leave but not been paid for it (or have been underpaid), there may still be an impact on these cases.  Therefore the future of the long-running holiday pay cases of Bear Scotland etc. (see our updates here) remains uncertain.   In particular, employers need to be aware that both the three-month break and the two-year cap on back pay currently established by these cases are now looking vulnerable.

As ever with holiday pay claims, this is a complex area and before taking action we would encourage you to seek advice from our Menzies Law team on 0117 325 0526.

Case update (2): Breach of contract – false reasons for dismissal

Summary: Did an employer’s false explanation of reorganisation as the reason for dismissal (it was really poor performance) breach the implied term of trust and confidence?

Yes, says the EAT in Rawlinson v Brightside Group Ltd, available here.

Facts: Mr Rawlinson, the employee, was employed as Brightside Group’s, the employer’s, new Group Legal Counsel. Concerns about his capability were identified very early on but nothing was raised with him. Within four months it was decided that Mr Rawlinson’s position was untenable, but to “soften the blow” he was simply told that the company had decided to outsource its legal services because the current arrangements were not working. Mr Rawlinson was given his contractual three months’ notice and asked to keep working to ensure a smooth handover.

However, Mr Rawlinson believed the outsourcing would be a TUPE transfer and asked to whom the services were being outsourced. His line manager refused to comment. Mr Rawlinson became suspicious and considered that the Company was acting in breach of contract. He said that he was resigning in response to the breach and refused to work his notice period. Mr Rawlinson argued there is a duty on employers to be honest and not to mislead and proved the real reason for his dismissal by making a data subject access request.

Mr Rawlinson brought claims in the Tribunal for constructive wrongful dismissal for his notice pay, a failure to inform and consult under TUPE and a breach of the consultation requirements on a collective redundancy.

The Tribunal rejected his claims: there was no relevant transfer for TUPE purposes, and the company’s failure to forewarn Mr Rawlinson of performance concerns was not a breach of trust and confidence because was there was no obligation on the company to provide the information to him. The Tribunal also considered that his complaint was more about the manner of his dismissal for which damages cannot be awarded in a breach of contract claim.

Mr Rawlinson appealed to the EAT who upheld his unfair dismissal claim.  The EAT found that the term of trust and confidence implied into all employment contracts must include an obligation not to deliberately mislead. This does not mean an employer is under a broader obligation to volunteer information, such as a reason for dismissal. However, where the employer has provided a reason for dismissal, it must act in good faith. In other words, it must not give an untrue reason.

The EAT held that the employer was in breach of contract and Mr Rawlinson was entitled to rely on that breach and resign. As Mr Rawlinson’s complaint did not relate to the dismissal but to the falsehood told to him with a view to keeping the relationship alive during the notice period, he was entitled to damages for this breach.

Implications:  Understandably it is attractive for managers to soften the blow on dismissal.  However, this message of this case is that it is better to say nothing than to mislead and honesty is usually the best (employment) policy!

Employers are under increasing pressure to be more transparent with their employees in a wide range of areas, ranging from how employee data is used, to pay policies and practices and how that impacts on the gender pay gap and salary quartiles. This case is a reminder that the need for transparency extends also to dealing with employee relations and gives employers even more reason to train line managers, regularly manage performance through one-to-one meetings and, where performance is not up to scratch, have the, sometimes difficult, conversation about under-performance.

ACAS guidance: Sexual harassment & pregnancy and maternity discrimination

  • Sexual harassment at work: Following the recent high profile sexual harassment cases, ACAS has published new guidance (available here).  This guidance assists employers with how to identify and support people who face sexual harassment at work. ACAS highlights a number of behaviours that could be interpreted as sexual harassment, including the display of explicit images, verbal or written sexual comments or innuendos, unwanted touching and inappropriate jokes or questions about a colleague’s sexual behaviour. In addition, the report encourages employers to have sexual harassment policies in place to ensure any incidents are quickly resolved and explains what action to take when historical allegations are reported.
  • Pregnancy and maternity discrimination: ACAS has published guidance for employers on how to prevent pregnancy and maternity discrimination at work and recommends several measures, including:
    • developing a policy that outlines the responsibilities and rights of pregnant employees (or those on maternity leave), including assurances that they will not be dismissed or made redundant as a result.
    • ensuring that employees on maternity leave are aware of all promotion and training opportunities.
    • making reasonable adjustments to protect the health and safety of a pregnant employee and their unborn child.

ACAS published its new guidance after receiving 14,000 calls about pregnancy and maternity discrimination in the last year (a 10% increase compared to the previous year).

 

 

 

Christmas spirit(s)

It’s nearly Christmas time again and, without being a party pooper, the festivities can present some unique challenges for employers. So to get some help on managing these please read on.

1. Christmas Party

The annual Christmas party is often the one opportunity each year employees have to come together in a social setting. For your staff this should be real morale booster and a memorable evening – let us help you make sure this is for the right reasons!

The invite:  Avoid insisting that all staff attend the Christmas party. Christmas is a Christian holiday and some staff may not wish to on the grounds of their religion. If the event is out of hours, also remember that some people have family responsibilities that may prevent attendance.

Alcohol:  Be careful if you’re planning on providing free drink or putting a credit card behind a bar. In one case, three employees of the Whitbread Beer Company got drunk and had a fight after a seminar on improving behavioural skills. They successfully argued that their resulting dismissals were unfair. A relevant factor was that the employer had provided a free bar – and therefore condoned their behaviour.

Also, watch out for under-age drinking. Employers shouldn’t allow under 18s to drink. In an extreme example, an employer was found responsible for the death of a girl at the office party due to alcohol poisoning.

Mistletoe Misdemeanours:  Policies on bullying and harassment and discrimination still apply at the office party. Just make sure everyone knows this and knows what they are.

This is one reason why mistletoe is dangerous. One survey reported found that, while 80% of women would laugh off a pass made by a male co-worker, boss or client, 13% would lodge a complaint. The laws on discrimination apply at the office party regardless of location. So when one man told a female colleague, “****** hell, you look worth one” at an after-work leaving event taking place in a local pub, the Tribunal had little difficulty in ruling that it was in the course of employment and therefore discriminatory.

Employers can find that they end up paying for unwanted advances between co-workers if Tribunals characterise the behaviour as evidence of a culture of victimisation or harassment.

You’ve Been Tagged:  It might be said that there is no such thing as bad publicity but the last thing an employer needs is for images or footage from its Christmas party going viral on social media sites for all the wrong reasons.

Employers should ensure that employees are aware either through their Social Media Policy or specific guidelines circulated in advance of the Christmas party, that employees should not place material on social media sites which would adversely affect the reputation of the employer and that such conduct may result in the employee being disciplined in accordance with the employer’s disciplinary policy.

Getting home:  Tipsy staff who plan to drive home are, unfortunately, the employer’s responsibility. ACAS points out that employers have a duty of care to their employees – and because it’s their party, employers must think about travel arrangements. Consider ending the party before public transport stops running; or provide the phone numbers for local cab companies and encourage staff to use them.

The morning after:  If the party is mid-week and people are expected in work the next day, ACAS recommends that you provide plenty of non-alcoholic drinks and food. Before the party, ensure that all staff know that disciplinary action could be taken if they fail to turn up for work because of overdoing it the night before.

 

2. Secret Santa

At the risk of being a party-pooper, employers should politely remind employees that their Equal Opportunities, Dignity at Work and Bullying and Harassment policies apply at all times, including Christmas. It is best to ask that all gifts are inoffensive and if a member of staff thinks a gift may cause offence to the recipient or anyone else, then best not to give it. Some gifts – notably underwear and sex toys – have sparked complaints in the past!

 

3. Decorating the office

Bah humbug! The Trades Union Congress (TUC) and the Royal Society for the Prevention of Accidents (RoSPA) have warned:

  • not to use a swivel chair to put up decorations – use a stepladder instead;
  • don’t hang the tinsel on computers or other sources of heat;
  • don’t decorate emergency exit signs;
  • that your insurance may not cover damage caused by untested electrical equipment – so switch off tree lights before going home;
  • party balloons can kill: around 3.6 million people in Britain suffer from some degree of latex allergy; and
  • Christmas trees are a hazard – so make sure they are secure and won’t be knocked over by people passing by or pulling cables.

 

4. IT problems

December can bring with it a more relaxed atmosphere in the workplace. Employers should watch out for greater informality in the style and content of emails and the downloading or distribution of inappropriate material, which can lead to claims against the employer for discrimination or harassment either by the recipient or by a colleague who views the inappropriate communication.

 

5. Christmas bonuses

If you have paid a discretionary Christmas bonus for several years, staff can argue that it has become contractual through custom and practice. So if times have been tough and you can’t afford to pay a bonus this year, tell staff why you feel unable to pay it and try to agree a solution. ACAS suggests that you could offer to pay a proportion of the bonus or stagger payments in the next few months.

Office Christmas parties have become synonymous with drunken blunders, career ruining comments, overzealous use of mistletoe and generally scandalous conduct.

 

Have a merry Christmas and a happy (disciplinary, dismissal and claim free) New Year!

Government reforms: Employment status – framework for modern employment

What do we already know?

We updated you in our July 2017 Newsletter Government reforms (1): Employment status – Taylor Review that the Taylor Review of Modern Working Practices had been published which focused on the importance of quality work: “fair and decent work with realistic scope for development and fulfilment” for all.  The Review made detailed recommendations for reform of UK employment law in respect of those who are not engaged as traditional employees, both in the “gig economy” and elsewhere.

What’s new?

The Work and Pensions and Business, Energy and Industrial Strategy Committees have published a joint report, “A framework for modern employment” (available here).

Although this is not the Government’s official response to the Taylor Review (which is expected shortly), this report does contain a suggested draft Bill which aims to take forward some of the Taylor Review’s central proposals.

The report makes recommendations for primary legislation on the following issues:

  • Clearer statutory definitions of employment status: The Report recommends that the Government legislates to introduce greater clarity on definitions of employment status which should emphasise the importance of control and supervision.
  • Worker status by default: The Report recommends that companies with a self-employed workforce above a certain size should have the burden of establishing that an individual is self-employed in a worker status case, although the Bill as drafted would establish worker status by default in all status cases.
  • Higher National Minimum Wage for non-guaranteed hours: the Report recommends that the Government work with the Low Pay Commission to pilot a pay premium on the National Minimum Wage (NMW) and National Living Wage for workers who work non-guaranteed hours. The intention is that this would operate essentially as an overtime rate for hours worked over the worker’s guaranteed hours.
  • Extension of the allowance for break in service for continuous service: the Report recommends that gaps in employment of up to 1 month (rather than the current 1 week) should not break continuous service.
  • Employment Tribunals: the Report recommends that the Government creates an obligation on Tribunals to consider the use of higher, punitive fines and costs orders if an employer has already lost a similar employment status Tribunal case and that the Government takes steps to enable greater use of class actions in disputes over wages, status and working time.

The report also makes recommendations for secondary legislation, which include the following:

  • Extension of the entitlement to a written statement of employment particulars to workers from the first day of a new job: The statement would need to be given within seven days and contain a clear statement of employment status and details of the rights and entitlements of the individual by reference to that status.
  • Lowering the threshold for Information and Consultation forums: currently organisations must have 50 or more employees (not workers) and at least 10% and a minimum of 15 employees must request a forum. The Report recommends that workers should count towards both thresholds and the threshold should be reduced from 10% to 2% of the workforce.
  • Stronger penalties for repeat or serious breaches of employment legislation: the Report recommends that the Government brings forward stronger penalties including punitive fines and expands the ‘naming and shaming’ regime which applies to National Minimum Wage breaches to all non-accidental breaches of employment rights.

 

December 2017 Newsletter

It’s December, Happy Christmas! We hope to entertain you with our last 2017 employment law/HR news before the celebrations (rightly) take over.

This year’s newsletters come to an end with a helping hand on how to manage a workplace full of the Christmas spirit, report on employment status and ACAS guidance.  In our final case update of the year we look at the CJEU’s decision on holiday pay for the wrongly classified self-employed and the EAT’s view that giving a false reason for dismissal is enough to amount to breach of contract.

See you in 2018 and enjoy the New Year’s Eve celebrations!

What we’ve been doing recently…

UK Regional Law Firm of the Year (Human Resources)

My team and I are delighted to be able to finish off 2017 in superb style by announcing that we have been crowned the UK’s Regional Law Firm of the Year 2018 in our field of Human Resources law.

It feels a towering achievement, and makes these last 9 years of growing Menzies Law from a tiny acorn feel well worth it!

This award from The Legal 500, the UK’s leading independent market research group in the legal sector, is particularly welcome and valuable to us because it comes solely as the result of the market researchers having spoken to many of our clients and our competitors.  It’s not an award you can even nominate yourself for, let alone ‘buy’.

I’d like to thank all of our clients very much indeed for the positive comments they have made to the researchers.

From myself and the Menzies Law team, we wish you a very merry Christmas and a productive, peace-filled New Year… with absolutely no fall-out whatsoever from any workplace Christmas parties.  None at all.

Luke Menzies
Director

or call 0117 325 0921

 

 

 

 

 

 

UK Regional Law Firm of the Year (Human Resources) 2018

We are absolutely delighted to have been named as the UK’s Regional Law Firm of the Year (Human Resources) 2018 by the national legal sector research body, The Legal 500.

Commenting on the award, Menzies Law’s Director, Luke Menzies, said:

“I am really thrilled that our growing specialist firm has been given such significant recognition, by the legal industry’s leading authority on law firms’ rankings and quality.

“Over the last year we have significantly expanded the range of employment law and related services that we offer, and have developed a national profile as Gender Pay Gap and Equal Pay experts.  It has been both tremendously hard work and also enormous fun.

“2018 will be our firm’s 10th year since establishment, and I can’t think of a better or more prestigious way to celebrate that milestone than this recognition.  My huge thanks to all our hard-working team and to our wonderful clients!”

Read more about it here: www.businessleader.co.uk

Case update (1): Uber drivers are ‘workers’

What do we already know?

We updated you in our November 2017 Newsflash Uber drivers are ‘workers’ on the EAT’s decision that drivers who provide services to the online taxi firm, Uber, are ‘workers’, rather than self-employed.

What’s new?

We promised you further detail on this case so here it is…

Summary:  When Uber drivers have the Uber app switched on, does Uber have sufficient control over the drivers to mean that they are ‘workers’ and entitled to employment rights?

Yes, says the EAT in Uber BV and others v Aslam and others available here.

Background:  The law in the UK distinguishes between groups of staff and provides different rights for each group. Broadly these groups are 1) employees, who have the largest selection of legal rights 2) workers who have a more limited selection of rights and 3) the self-employed who have minimal legal rights owed to them (other than contractual rights agreed between themselves and each organisation to whom they provide their services).

For a self-employed, non-employee, to qualify for worker status there must be a contract between the individual and the ‘employer’ under which the individual undertakes to do work personally, and the ‘employer’ must not be a client or customer of a business operated by the individual.

Determining the status of the relationship between businesses and those they engage involves the Tribunal looking beyond the terms and conditions in place between the parties to the reality of the relationship. The Tribunal will look at a number of factors to determine the true status of the relationship, but what really matters is the Tribunal’s view of how much control the business exerts over the individual, and whether or not that tips the balance away from the individual truly having the autonomy of being self-employed.

Those who show they have ‘worker’ status can then access a broader range of employment rights such as the national minimum wage, 5.6 weeks’ paid annual leave each year, right to a pension scheme, a maximum 48 hour average working week and rest breaks and protection of the whistle blowing legislation.

Facts: Uber operates a platform connecting passengers to thousands of drivers through a smartphone application. The application allows passengers to request to be picked up from a certain location and they pay Uber for the journey, Uber in turn pays the drivers.

Uber engages its drivers as self-employed contractors.  Two of its drivers issued a Tribunal claim on the basis that Uber were acting unlawfully by refusing to recognise their status as workers.  They claimed that Uber was failing to provide them with the correct rights and protections, such as paid annual leave and the national minimum wage.

Uber’s key argument when defending this claim was to contend that it is the passengers who contract with the drivers and that Uber does not therefore control when and how the drivers work.  However, the drivers disagreed and instead contended that in practice they are workers undertaking personally to do work for Uber and under its control, without Uber being a client or customer of the drivers business.

Uber also had a carefully crafted contract in place between the parties setting them up as self-employed.  However, the Tribunal looked beyond this and at the reality of the relationship in practice. The Tribunal accepted the drivers’ interpretation of the position, finding them to be workers engaged by Uber to provide services to passengers.

In terms of the relationship between the drivers and Uber, the Tribunal identified a number of components in their relationship with Uber which they thought to be significant indicators that the drivers were ‘workers’, including that:

  • Uber interviews and recruits drivers;
  • it controls key information as to the passenger’s identity and destination which is not shared with the driver;
  • it requires drivers to accept trips (with consequences for those in breach);
  • it imposes conditions on drivers, instructing them on how to do their work;
  • it fixes the fares; and
  • it controls the drivers in the performance of their duties.

Uber appealed to the EAT.  The EAT upheld the Tribunal’s finding and held that Uber drivers are considered to be workers when:

  • the drivers had the app switched on;
  • they were within the territory in which they were authorised to work; and
  • they were able and willing to accept assignments.

The EAT found that the written contractual documents in place were inconsistent with the reality of the situation. The drivers were essentially incorporated into the Uber business of providing transportation services, and were subject to the company’s control. The obligations placed by Uber onto the drivers were found to indicate a worker relationship. In coming to this conclusion, the EAT paid particular attention to the level of control exerted by Uber over its drivers and the fact that if its drivers were truly independent, they would be able to refuse or cancel jobs as they wished.  Instead Uber included requirements such as accepting a minimum of 80% of trip requests, as well as facing penalties should they fail to accept requests or cancel a trip.

Implications:  This is an important decision and employers should take note particularly as several other ‘gig economy’ cases before the courts this year, have found the so-called self-employed to be ‘workers’.   It will be interesting to see if case law relating to employment status in the gig economy continues to follow in this direction.

However, despite its importance, it is worth remembering that it is still fact-sensitive and Uber may well appeal.  Indeed, both the Tribunal and EAT were clear that Uber could have devised an alternative business model in which the drivers were self-employed; this was simply not the case here.

This lack of clarity in status may be resolved by legislation and, indeed, the recent Taylor Review (see our July 2017 Newsletter Government reforms (1): Employment status – Taylor Review) suggested that we need a clearer definition of workers, and that all workers should be taxed as employees. It also backed the equalisation of national insurance for the employed and self-employed, noting that current differences create incentives for individuals and companies to use self-employment.

Government reforms (2): Tribunal fees – refunds available (finally!)

What do we already know?

We updated you in our July 2017 Newsflash Tribunal fees unlawful – enormous impact that the Supreme Court ruled Tribunal fees unlawful and removed them with immediate effect, including retrospectively all the way back to their start in July 2013.

The Supreme Court’s decision also meant the refunding of all Tribunal fees paid in the past by the Lord Chancellor’s Department.

What’s new?

After a brief pilot scheme, the full scheme for refunding Tribunal fees is open for use.

The scheme can be used immediately by all claimants and respondents who have paid a fee during Tribunal proceedings, or during an appeal to the EAT. Refunds will be processed directly to the applicant’s bank account, together with interest at 0.5%.

There are various ways to apply for a refund:

  • An online application process (available here).  This method seems only to be open to individual claimants who either paid the fee themselves, or reimbursed a representative who paid a fee on their behalf.
  • Refund Form 1-C (available here).  This is for claimants only and can be used to apply for a refund by post or email. This can be used by individual claimants who paid the fee themselves, reimbursed their representative for a fee paid on their behalf, or were ordered to reimburse their opponent for a fee.
  • Refund Form 3-S (available here).  This can be used by lead claimants in a multiple claim, on the basis that they will distribute the refund to the other claimants. It can also be used by representatives who paid fees on behalf of an individual or group of claimants, such as trade unions who have funded a claim.
  • Refund Form 2-R (available here) is designed for respondents, allowing those who have paid a fee to claim a refund. It also covers the situation where a respondent was ordered to reimburse a claimant for Tribunal fees.

The forms also make it clear that all types of fee can be reclaimed, not just fees for issuing a claim or having a hearing which were the subject of the Supreme Court’s decision. A list of fees is set out at the end of the form, which includes fees for: judicial mediation; reconsideration of a default judgment; reconsideration of judgment following a final hearing; dismissal following withdrawal; and employer contract claims.