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‘Tribunal Fees are Unlawful’, decides Supreme Court in Unison case

There will no doubt be mixed emotions amongst employers and employees following the Supreme Court’s judgment this morning in which the court ruled that the tribunal fee regime introduced in 2013 are unlawful and should be quashed.  In handing down its decision the Supreme Court has ruled that the Government was acting both unconstitutionally and unlawfully when it introduced the fees several years back.  Meanwhile the Ministry of Justice has now confirmed that the Government will take immediate steps to stop charging Employment Tribunal hearing fees and will refund the money to those Claimants who have brought claims since the Supreme Court decision – a figure estimated to be in the region of up to £32m.

The Government scheme introduced fees in an attempt to reduce the number of frivolous claims brought by Claimants in the employment tribunal.  The regime required claimants to pay a fee upon lodging a claim and again later in proceedings for the actual tribunal hearing  and the value of the fee was determined by the type and complexity of the claim, as well as the anticipated time required for the hearing itself.   As a consequence this led to a significant reduction (reportedly as high as 79% reduction) in tribunal claims over the course of the past three years.  The regime has attracted significant criticism from many employees and the unions as inhibiting access to justice for many deserving employees who were unable to afford to fund a claim.   In the Unison case the claimants also argued that hearing fees hindered a worker’s right of access to justice on the basis that any potential financial reward would be rendered pointless having already paid the extortionate hearing fees.

The Supreme Court also decided that the fees were indirectly discriminatory to women. This is on the basis that women were more likely than men to bring claims of discrimination and as claims for discrimination were typically more complex; the hearing fee would always be at the higher end of the fee bracket thus meaning that women would always have to pay a higher fee.

With many reporting this to be a massive win for employees there are concerns from a number of employers who whilst recognising the importance of access to justice, nevertheless fear that abolishing tribunal fees entirely will lead to an increase in the number of frivolous and /or spurious claims that they have to defend.   Time will tell how the government intends to address the clear need to balance on the one hand an individual’s right to have access to justice with, on the other hand, funding an efficient tribunal system where frivolous claims are kept to a minimum. 

It is likely that the government will first publish a consultation paper on how it intends to move forward with the fees regime. More to follow…


To discuss this or any related matters please do not hesitate to contact our team.  

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