Employment Tribunal Fees Unlawful

A recent Supreme Court decision has brought to an end the Government’s controversial employment tribunal fee regime.

The Introduction of Fees

The Fees Order was introduced by the Government in July 2013. Up until that point a claimant could bring and pursue proceedings in an employment tribunal (ET) and appeal to the Employment Appeal Tribunal (EAT) without paying any fees.
Under the Fees Order, the claimant had to pay a fee when a claim form was presented to an ET, and a hearing fee prior to the hearing of the claim. The amount depended on whether the claim was brought by a single claimant or a group, and whether the claim was classified as “type A” or “type B”.
Type A claims were specified, and generally required little or no pre-hearing work and very short hearings. All other claims were type B, including unfair dismissal, equal pay and discrimination claims.
For a single claimant, the fees totalled £390 for a type A claim and £1200 for a type B claim. In the EAT fees were also payable in two stages, but without distinction between different types of appeal, or between single and group appellants. A full or partial remission of fees was possible if a claimant’s disposable capital, together with their partner’s, was below a specified amount (in most cases, £3,000).

Legal Challenge by UNISON

Trade union UNISON challenged the system’s legality in a long-running dispute that went all the way to the Supreme Court.
The union argued that the making of the Fees Order was not a lawful exercise of the Lord Chancellor’s statutory powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.
The Supreme Court has now unanimously ruled in UNISON’s favour, finding that the Fees Order was unlawful and also indirectly discriminatory.
As a result, employees will currently no longer need to pay a fee to bring a claim to an employment tribunal, and reports suggest that employees who have previously paid a fee will be entitled to have this refunded. It is not yet known whether the Government will try to introduce a different type of employment tribunal fee regime.

Reaction to the Ruling

The decision of the Supreme Court has generally been welcomed.
"This decision is a triumph for access to justice, and a resounding blow against attempts to treat justice as a commodity rather than the right it is," stated Law Society president Joe Egan.
"We argued against the hike in tribunal fees before it was implemented and – like so many others - warned that they would deny people the chance to uphold their basic rights at work,” he added. “Today the Supreme Court has vindicated that view, and restored access to justice for those mistreated in the workplace."
The CBI was also positive about the ruling.
“The CBI has long held the view that the current employment tribunal fees regime is flawed and should be reformed,” commented Neil Carberry, CBI Managing Director for People and Infrastructure.
“Access to justice is essential and must be protected,” he said. “There is an important role for a proportionate fee that acts as an incentive to ensure that going to tribunal is always a last resort, but that does not require the high fees introduced in 2013. We hope the government swiftly brings forward an alternative approach.”
“More broadly, action is needed to return employment tribunals to their original vision – speedy, fair, informal and affordable for both workers and businesses,” he added.

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