Employment tribunal fees are unlawful under both UK and EU law because they prevent access to justice, the Supreme Court has today ruled.
Since July 2013, workers in the UK have been charged a fee to bring a claim to tribunal, a further fee if the claim is heard and another charge if they want to appeal the decision.
Following their introduction in 2013, Unison sought unsuccessfully to have employment tribunal fees ruled unlawful in two High Court challenges and in the Court of Appeal. Unison’s final appeal to the Supreme Court was heard on 27 and 28 March 2017, with the decision released today.
What does this mean going forward?
Firstly, it is unlikely the fees regime will be abolished entirely. It is probable that the government will issue a consultation paper and then bring in a new fees regime, along the lines as currently followed in county court and High court proceedings; with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its ET3. This is unlikely to have any immediate impact as there will need to be a rewriting of the tribunal rules, and a reprogramming of the online Claim Form system.
However, today’s news has a huge impact on the number of cases that will undoubtedly be heard before the Tribunals.
What about fees already paid/due to be paid?
The Supreme Court has made it clear in its judgment that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor’s Department (and the Lord Chancellor has agreed to do so). This is easier said than done!
Lastly it is worth raising the potential issues this judgment could unearth;
Relationships between employers and employees are generally characterised by an imbalance of economic power. Today’s decision will go some way to address this power imbalance.
If you have any questions on today’s judgment or any employment matters, please contact Michelle Morgan, Senior Associate in the Employment team based in our Maidenhead office.