The UK Supreme Court has ruled that Employment Tribunal fees are unlawful since they have the effect of preventing access to justice for claimants. Wednesday’s decision comes following the case brought by UNISON against the government. Having been unsuccessful in their previous challenges in the High Court and the Court of Appeal, the UK Supreme Court have unanimously agreed that the fees scheme imposed is unlawful.
The Fee System
The tribunal fees system took effect on 29th July 2013 and required claimants to pay a fee before their case could be heard. The fees are payable depending on the type of claim being raised. For simpler claims such as contract claims, unpaid wages claims, the fee was £390 whereas more complex claims such as unfair dismissal claims and discrimination claims required a total fee of £1200.
The Impact of Fees
Since fees have been introduced by tribunals, there has been a large reduction, of around 70-80%, in the number tribunal claims brought by employees. The ruling by the Supreme Court is that the reduction in claims is evidence that the fees system has prevented access to justice for individuals.
The Supreme Court Decision
Simply put, the Court found that the fees are not affordable for the average working person in the UK. Not only that but where the fees payable exceed the amount claimants are seeking or where the claimant is seeking enforcement or recognition of employment rights, it becomes irrational and uneconomical to bring a claim in the first place. Although the Court could see the legitimate reasons for imposing a fee in tribunals e.g. moving the burden of costs from the taxpayer to the users of the system, it found that the current system is not proportionate enough to meet these aims. The Court also found that the fees scheme is indirectly discriminatory towards women since a higher proportion of women brought more complex claims that required the higher fee.
What This Means for Claimants
For the time being, the government has confirmed that there will be no fees payable to raise an employment tribunal claim. This will also see the government refunding tribunal fees of around £32million to thousands of individual claimants who have raised a claim since the fees were introduced. It is likely that the government will look at imposing a lower rate of tribunal fees payable by claimants in the future, which may also require the employer to make a contribution towards the fees. What is certain is that the current scheme is unlawful and will require immediate action by the government.
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