Employment tribunal fees ruled unlawful

The Supreme Court has today ruled that it was unlawful for the Government to make claimants pay a fee to bring claims in the employment tribunal and the employment appeals tribunal, Catherine Urquhart writes.

These fees will now be abolished with immediate effect. Claimants who have paid the fees since the system was introduced in 2013 will be refunded, a move that is expected to cost the Government at least £27 million.

Under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, which took effect on 29 July 2013, a claimant had to pay an issue fee when they presented a claim form, and then a hearing fee if the matter proceeded to a hearing. For simpler claims such as for unlawful deductions from wages, the total payable was £390 if the case went to a hearing. But most employment claims – including those for unfair dismissal and discrimination – would cost the claimant £1,200 to take a case through to a hearing. Although there was a means-tested fees remission scheme, the Supreme Court justices noted that the proportion of claimants receiving a remission (at 29%) was far lower than had been anticipated when the scheme was introduced.

The effect of the introduction of tribunal fees had a huge impact on the number of claims brought, which dropped by 79%. The seven-strong panel of Supreme Court justices (including the President, Lord Neuberger, and Deputy President, Lady Hale), unanimously allowed the appeal. Lord Reed, who gave the lead judgment, noted that “The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable” (paragraph 91 of the judgment). The effect of this was to deny many people access to justice.

Further, the Fees Order was indirectly discriminatory under the Equality Act 2010 because the higher, £1,200 fees put women at a particular disadvantage, because they brought more of these types of claims than the less expensive, £390 claims.

The Supreme Court case arises out of proceedings for judicial review in which the trade union UNISON argued that the making of the 2013 Fees Order was not a lawful exercise of the Lord Chancellor’s statutory powers, because the fees interfered unjustifiably with the right of access to justice under both the common law and EU law; frustrated the operation of Parliamentary legislation granting employment rights; and discriminated unlawfully against women and other protected groups. A UNISON spokesman said today that this was “a major victory for employees everywhere… at last this tax on justice has been lifted”.

R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51. The full text of the judgment is found here