Employment Tribunal Fees Quashed by Supreme Court
In today’s ruling the Supreme Court has said that Employment Tribunal fees are unlawful. The Trade Union (UNISON) had sought a judicial review and a quashing order and they got what they asked for. The Supreme Court has held that the fees breach EU principles as well as UK law.
Tribunals have to stop seeking fees immediately and they need to start working out how to pay back around £30m that has been illegally collected since 2013. The latter might not be as easy as you would at first think because when Claimant’s won at the tribunal, in most cases, the Respondent would have been ordered to repay the fees as part of the compensation, therefore it will be the Respondent that gets a refund. In other cases, insurance companies or trade unions may have paid and they will be the ones getting repaid. So this could become a logistical nightmare for the MoJ. Or perhaps they will just say that any payments ordered were compensation and repay the fees to the person that actually paid them.
For Employers the fees regime has been quite wonderful, with tribunal cases dropping by 70%, but for Claimants it has been a disaster and this is why Lord Reed has acknowledged that since the introduction of fees there has been a dramatic and persistent fall which had reduced the potential claimant’s common law right to access to justice. As the fees were so high they would, in practice, prevent people who could afford to pay from pursuing small amounts of money or non-monetary claims. The conclusion from this is that the fees imposed disproportionate restrictions on the exercise of EU derived rights. But, Lord Reed also said that access to justice is “not an idea recently imported from the continent of Europe, but has been deeply embedded in our constitutional law” . Don’t you just love the Magna Carta.
We have to wait to see what this actually means going forward, but I am fairly sure that we will see a very quick increase in cases. There is also a potentially interesting issue that employees who might have taken a case over the last 4 years, may have to be given leave to issue their claims out of time if they can persuade a judge that the sole reason for not making the claim was financial and specifically the cost of the fees.
In a separate Judgment, the fees are also seen to be indirectly discriminatory against women.
Of course, this may not be the end of fees as the Government is, no doubt, already looking at ways to implement other costs, with one idea that is being mooted – to charge the employer if he is taken to tribunal. In other words you need to pay if your employee is unhappy at work or has been dismissed. I hope that this idea is a non-starter, but be prepared to lobby your trade associations if it starts to gain credence.
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The full judgment can be found by clicking here