Employment Tribunal fees found to be unlawful by Supreme Court
The Supreme Court has today upheld Unison’s appeal and found that Employment Tribunal fees are unlawful. This is a ground-breaking decision; since the fees have been introduced, many have argued that it prevents access to justice and as the years have trickled by the statistics have shown this to be the case.
Introduction of Fees
On 28th July 2013 the Government introduced fees into the Employment Tribunal system. Those wishing to issue a claim had to pay an issue fee and a subsequent hearing fee if the case progressed to the final stages. The fee payable depended on the type of claim issued. For simple cases the total fees payable were £390, for more complex £1,200. If you wished to appeal a decision the total fees payable jumped to £1,600. To put this into context, the majority of tribunal claims result in modest awards. For example, in the median award for unlawful deduction from wages in 2013 (pre-fees) was £900, with 25% of successful claimants being awarded less than £500. These fees meant that such claims became disproportionate despite the money being owed.
In response to concerns about access to justice, a remissions system was also introduced to help those who could not afford the fees.
On 28th July 2013, the very day the legislation was passed introducing the fees, Unison sought a judicial review of the law on a number of grounds. Since then this legal battle has raged on with no movement from the Government on the fee structure. Today the Supreme Court, the highest court in the land, gave judgment on this matter.
By the time the case was before the Supreme Court, only two grounds of appeal were advanced, namely that the fees hindered access to justice, and the higher fee payable was indirectly discriminatory towards women because more women pursued claims that attracted the higher fee, i.e. maternity/pregnancy, part time worker and sex discrimination, and as such they were placed at a disadvantage in pursuing such claims if they could not afford it.
In relation to the fees preventing access to justice, the Supreme Court found that there was evidence that there had been a drastic decrease in the number of claims being pursued since the fees had been introduced. As such they found that access to justice was hindered by the introduction of the fees. This meant that the legislation was unlawful.
Turning to the argument that the fees were indirectly discriminatory, the lower courts had accepted that the higher fee was indirectly discriminatory and the Lord Chancellor did not seek to challenge this. Therefore, the question for the Supreme Court was whether the Lord Chancellor could justify the treatment. The Supreme Court held the aim of the fees was to lessen the burden of taxpayers funding the service, however, the drastic fall in the number of cases meant the fees were not maximising revenue and were not therefore justified.
The Supreme Court ruled that the fee regime is unlawful and therefore must be withdrawn. However, we will have to wait and see whether a new regime is introduced that is more proportionate or where the employer may also be required to pay a fee. In our opinion, this is unlikely to be the end of fees in the Employment Tribunal.
The further good news is that any fees paid between 2013 and now will be reimbursed. This may take some time, as the Tribunal will have to review judgments to determine cases where the employer had to reimburse the fee. Any one therefore looking to recover their fees may have to wait some time for this.
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Laura Pearce, Senior Solicitor