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Employment Tribunal Fees Unlawful

August 2017

The Supreme Court has ruled that the fees that Claimants have to pay in order to bring Employment Tribunal Claims are unlawful.

The requirement to pay fees commenced in 2013 after the coalition government passed a Fees Order to that effect. Before that time, a Claimant could issue and pursue a claim in the Employment Tribunal without having to pay any fee at all.

Once the Fees Order came into force, whilst there was something of a sliding scale in respect of the fees to be paid for different types of claim, a Claimant could find themselves paying £1200 to take a claim such as Unfair Dismissal to an Employment Tribunal hearing.

The introduction of fees had a swift, consistent and huge impact on the numbers of claims being brought to the Employment Tribunal by Claimants; the Supreme Court judgment noted that, since the introduction of fees, there had been a decrease of up to 70% in respect of new claims being issued.

As a result, the trade union Unison issued Judicial Review proceedings in order to challenge the Fees Order. Whilst Unison lost in the High Court and the Court of Appeal, the Supreme Court allowed the appeal, amongst other things, on the basis that the Fees Order:

  • was unlawful as its effect was to prevent access to justice;
  • acted as a deterrent to a range of small value or non-monetary claims which formed the majority of claims ordinarily brought in the Employment Tribunal; and
  • was indirectly discriminatory against women, as higher fees had to be paid for claims such as Discrimination or Equal Pay, and a higher proportion of women would bring that type of claim over other types of claim which required a lesser fee to be paid.

As to what happens next, in the short term, and as a result of the Supreme Court decision, it has been confirmed by a Government minister that all Employment Tribunal fees paid by Claimants between 2013 and now will be fully reimbursed, and the requirement to pay fees to pursue an Employment Tribunal claim will stop immediately.

What is less clear is how reimbursement of fees will be managed in practice. The decision of the Supreme Court also raises interesting questions as to whether there is scope for Claimants to argue that they were dissuaded from pursuing valid, and potentially valuable Employment claims, as a result of the unlawful obligation to pay fees to proceed with a claim.

It is also the case that there is much varied legal commentary at this time as to whether the judgment marks the end of Employment Tribunal fees generally, or whether it will lead to an attempt by the government to reintroduce fees, based on different criteria, at a future date.

For preliminary advice on any area of employment law please contact us.

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