Today, 26 July 2017, the Supreme Court (the highest appellate Court in the United Kingdom) ruled that the fees charged by the Employment Tribunal are unlawful. Fees have been payable by claimants looking to bring claims in the Employment Tribunal since July 2013. For the purpose of applying the fee, Claims classified as type A are required to pay £390 while claims classified as type B (which could take longer to resolve) were charged at £1,200. The fees were introduced to combat frivolous or spurious claims.
The unanimous ruling came in the case of R (on the application of UNISON) –v- Lord Chancellor [2017] UKSC51. UNISON first issued its claim in 2013, judgments from the High Court in 2013 and the Court of Appeal in 2015 both ruled in favour of the government.
The Supreme Court found that Employment Tribunal fees are unlawful under both domestic and EU law as they effectively prevent access to justice. The Court contrasted the fixed nature of the Tribunal court fees with similar court fees charged in Civil Small Claims Courts and other Tribunals where the fees are variable and are proportionate to the value of the claim. They found that the fixed nature of the fees acts as a deterrent to claims for modest amounts or for non-monetary remedies.
The Supreme Court heard evidence that the introduction of fees led to a dramatic fall in the number of claims brought in the Employment Tribunal. The Court found that the fees effectively prevented access to justice and that the fees should be affordable in the sense that they can reasonably be afforded by a claimant. The Court found that the stated purpose of the introduction of fees was legitimate, but it had not been shown that the introduction of fees was the least intrusive means of achieving that legitimate aim.
On a separate matter, the Court also found that Tribunal fees were indirectly discriminatory under the Equality Act 2010 as women were more likely to bring type B Claims relating to unfair dismissal, equal pay and discrimination claims and that the imposition of higher fees in these cases was not a proportionate means of achieving the aims of the Tribunal Fee.
The government has previously committed to reimburse all fees paid if it was found they acted unlawfully. The government has confirmed that it will cease taking payment of Tribunal fees immediately and will begin the process of reimbursing some £27 million paid in Tribunal fees paid by Claimant’s post-July 2013.
It remains to be seen what the Government will now do in response to the Supreme Court’s Judgement. The Government may suggest an alternative fees regime which addresses the concerns raised within the Supreme Court’s Judgement but without an overall majority in parliament it may be difficult for the Government to secure the necessary support to enact new legislation.
Perhaps of more significance is the large group of potential claimants who chose not to bring a claim because of the fees involved in doing so. It is unclear whether there will be any relief available for those who chose not to bring a claim because of the unlawful fees regime. Some are suggesting that tribunals should be amenable to applications bought out of time where the Claimant was significantly impeded in bringing a claim by the unlawful fees regime.
If you require any further information in respect of the Judgement or wish to speak to somebody about an Employment claim please contact our Employment Department on 01245 584515 or by email at [email protected].