26 Jul 2017

Employment Tribunal fees held to be unlawful

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The Supreme Court has today handed down its judgment in Unison's challenge against the introduction of Employment Tribunal fees and has held unanimously that the current fees regime is unlawful.

Fees for bringing a claim in the Employment Tribunal were introduced in 2013 and have led to a reduction in claims of around 80%.

The Supreme Court's judgment is based on three main issues, holding that the charging of fees:

(a)  effectively and unjustifiably prevents access to justice; 
(b)  imposes unjustifiable limitations on individuals' ability to enforce EU law rights; and 
(c)  is indirectly discriminatory on the grounds of gender and such discrimination cannot be objectively justified. 
                       

The judgment (a summary of which can be found here) has both immediate and retrospective effect, so that fees cannot be charged going forward and fees already paid under the regime since 2013 (reportedly around £30 million in total) will, in theory at least, have to be refunded. In addition, while there is reference to EU rights within the judgment, its focus on access to justice under domestic law means that the position will not be affected by Britain's departure from the EU.

Whilst this is a very important judgment with significant and immediate impact, it does not necessarily mean that Employment Tribunal fees will disappear altogether in the longer term. It is open to the Government to consult on and implement a new fees regime, taking into account the comments made by the Supreme Court in order to ensure any such regime is lawful – and this possibility is expressly recognised in the Judgment. However, the Government is likely to have other priorities in the immediate future.

For now, there is likely to be an increase in Employment Tribunal claims in the coming months, potentially including from those who felt impeded from bringing a claim due to the fees regime who may seek permission to bring claims which would otherwise be out of time.

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Anne Pritam

Anne Pritam
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Beth Hale
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