Employment Tribunal Fees are no longer lawful!

You will have undoubtedly heard in the news about the decision of the Supreme Court that Employment Tribunal fees are unlawful, and as a result they will be removed immediately, meaning that employees who wish to make a claim in the Employment Tribunal will no longer have to pay £160 or £250 to submit their claim and a further £230 or £950 for the hearing fee.

Background

Employment Tribunal fees were introduced in 2013 and prior to this it had been free to make a claim in the Employment Tribunal or appeal to the Employment Appeal Tribunal.

The reasons for the change stated by the government at the time were:

1) To encourage the early resolution of the dispute by other methods than the Tribunal;
2) Encourage employees to consider the Tribunal as the last resort;
3) To reduce burden of the costs of the Tribunal to the tax payer.

I wrote at the time (read here) that I did not believe that the introduction of fees was an appropriate method of achieving the outcomes required at 1 and 2, and that there were, in my opinion, different ways of achieving this.

I stand by this opinion and in fact believe that more claims have been submitted rather than having meaningful settlement discussions before because employers have waited to see if the employee actually comes up with the money to make their claim. I also believe that there are better ways of preventing spurious claims or claims where employees believe they will chance it and make a claim in the hope of some settlement.

Unison challenged the government’s decision to introduce fees fairly quickly and as data became available it was clear that the fees were impacting the number of people making claims in the Employment Tribunal. After several rounds in the lower courts the case reached the Supreme Court who ruled in Unison’s favour.

Supreme Court Decision

There are several reasons why the Supreme Court decided that the fees were unlawful including:

1. They prevented access to justice – there was a reduction of 70% in cases in the Employment Tribunal post fee regime;

2. They placed a limitation on an individual’s ability to apply their rights under EU law;

3. Charging a higher fee for discrimination claims was indirect discrimination;

4. They were indirectly discriminatory to women as a higher proportion of women would bring discrimination cases;

5. They had not made a significant contribution to Employment Tribunal costs as had been expected;

6. Employment Tribunal cases are important to wider society and not just those involved and therefore restricting access to justice by requiring fees to be paid had a wider impact on society.

It was also noted that the fees were more expensive than small claims in the County Court where the fees are lower for lower value cases.

The key issue, and most interesting, is that this case emphasises the importance of the rule of law and high degree of protection that is given to access to justice. The introduction of fees in the Employment Tribunal created a conflict between employment rights, set out in law, which give employees access to justice and remedy in respect of those rights, and the fees regime set up by the government.

Points to note

In a quote on the BBC website Unison General secretary is quoted as saying: “These unfair fees have let law-breaking bosses off the hook for these past four years, and left badly treated staff with no choice but to put up or shut up.” (read the full report here)

I am not sure that I agree that it has been as dramatic as this but I do believe that there are employees who would otherwise have tried to seek further redress for their issue if the fee had not been a barrier. I do know from working with employees that the prospect of paying out £250 when they are out of work and face a lengthy process and uncertainty of recovering the money is daunting and put many off pursuing their rights.

I do not agree that the fees are needed to prevent malicious or spurious claims, there is the option for the Employment Tribunal to make an award of costs against the employee in these cases and this should be considered at a much earlier stage for these types of case.

What happens next?

The www.gov.uk website has changed and states that no fee is payable, and I understand that the Tribunal are making changes/have made changes so that the claims can be accepted.

The Justice Minister Dominic Raab has said that the government are committed to reimbursing all employees who have made a claim and paid fees since they were introduced in 2013. As yet no details have been released as to how claimants can go about recovering their fees already paid, nor has there been any mention of what will happen where employers have lost a case and been ordered to pay the fees back to the employee. Will employers be able to recover this? We will have to wait and see.

You can read the full judgement here.

I am also really interested to hear your thoughts on this subject so please leave a comment below with your views and experience.

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