Employment Tribunal Fees Ruled Unlawful
After the Supreme Court concludes that the payment of fees for bringing a claim in the Employment Tribunal to be unlawful, Andrew King looks at the background to that decision and what comes next.
From 29th July 2013, you could only bring a claim against your employer (or former employer as they may then be) if you paid a fee. In what was considered to be an attempt to reduce the number of employment claims facing employers, the Government introduced legislation requiring employees to pay fees in the Employment Tribunal.
The level of fees payable were determined by the type of case you had. If your claim was for something considered straightforward, such as unpaid wages, holiday pay or redundancy pay, your claim would be categorised as Type A. The issue fee was to be £160 and the Hearing fee £230, totalling £390.
In other cases, those considered more complex or time consuming, such as unfair dismissal or discrimination claims, the fees were significantly higher. The issue fee was to be £250 and the Hearing fee £950, totalling £1,200.
This had a monumental impact on the number of employment claims brought. Government statistics showed that over a 3 year period, 79% fewer cases were brought.
The intention, it is believed, was to reduce the number of unmeritorious claims facing the Employment Tribunal. If forced to pay a sizeable fee, those individuals without genuine claims would not ‘have a go’ so to speak. However, the consequences clearly went much further than that and the introduction of fees undoubtedly resulted in many individuals, with valid claims, being unable to pursue them due to the fees payable.
Yesterday, the Supreme Court ruled that these fees were unlawful. Giving judgment in the case of R (on the application of Unison) v Lord Chancellor  UKSC 51, the court found that the fees prevented access to justice.
The government has vowed to respect the judgment with Justice Minister, Dominic Raab, confirming that the government would stop charging fees “immediately”.
It is understood that the government will also now look to reimburse those individuals who have paid tribunal fees since their introduction, a little over 3 years ago.
For those who brought a claim and paid a fee, the reimbursement will serve as a welcome and unexpected bonus. But what of those who never brought a claim in the first place? There will be many individuals who had the right to bring a claim, but did not, solely because of the deterrent of paying the issue and hearing fees. In denying an individual with a meritorious discrimination claim the right to bring an action, this is discrimination against that individual by the Government. Lawyers up and down the country will be considering the ramifications of this judgment over the coming days and weeks but it is clearly a possibility that we will see litigation against the Government for damages, in addition to the fee reimbursements being paid.
Although the introduction of Employment Tribunal fees did not make the Government an enormous amount of money, considered to be in the region of £32m, it did reduce the number of claims being issued dramatically, which was the initial objective. The Government is not going to want to see a return to that number of claims being issued and so, whilst word is that the Government will respect the judgment, this should not be considered the end of it.