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Employment Tribunal fees are unlawful – landmark ruling

Supreme Court

Supreme CourtThe Supreme Court has ruled that the fees charged for bringing a claim in the Employment Tribunal are unlawful.

The Government has confirmed that it will stop charging fees in the Employment Tribunal immediately and will take steps to reimburse those who have paid a fee.

Background

Historically it had been free to issue claims and use the Employment Tribunal Service.  This all changed in 2013 when the Government introduced a new fee regime which required anyone bringing a claim in the Employment Tribunal to pay a substantial fee.  The fees varied between £390 to £1,200.

Following the introduction of the fee regime, claims in the Employment Tribunal dropped dramatically.  Claims reduced by a staggering amount – around 70%.

Unison challenged the introduction of the fee regime; it argued, amongst other things, that the fees prevented access to justice.  Unison lost at the first two divisional court hearings and also lost before the Court of Appeal but they were successful before the Supreme Court.

The Decision

The Supreme Court held that the introduction of fees in the Employment Tribunal were unlawful as it effectively prevented access to justice.  It also found the introduction of fees were indirectly discriminatory against women.

What does this mean?

(i) for the Government

The Government has said it will repay those employees who have paid a fee to bring a claim in the Employment Tribunal since 2013.  It is said this will result in the Government repaying around £32m.

(ii) for Employees

Going forward, employees will no longer have to pay a fee to bring a claim in the Tribunal.  It however remains to be seen whether the Government will introduce a less onerous fee regime.

For employees who have brought a claim and paid a fee, the Government has said it will reimburse the fees paid.  We will have to wait and see how this will work in practise.

(iii) for Employers

It is expected the removal of the fee paying regime will result in an increase in the number of employment claims brought.

Employers should therefore review their policies and procedures to make sure that they are robust and also ensure all employment matters are dealt with in a proper, reasonable and fair way.  If an employer is in any doubt about how to handle an employment situation they should seek legal advice.

Contact Us

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Jacqueline Penfold, Partner and Head of Department, Litigation and Employment

If you would like advice about Employment Tribunal or any aspect of employment law please contact Jacqueline Penfold by: