The Supreme Court has ruled that the current employment tribunal fee regime is unlawful and must be quashed.
The case, brought by UNISON, argued that the fees interfered with the right to access justice both in UK and European (EU) law, frustrated employment rights legislation and discriminated against women and other protected groups.
UNISON had previously been unsuccessful in the High Court and Court of Appeal in its attempt to overturn this legislation. However, Lord Reed who gave the lead judgment, said that whether employment tribunal fees prevented access to justice must be decided on their likely impact on ‘real world’ behaviour.
Lord Reed concluded that the fees were not affordable where households on low or middle incomes had to forgo acceptable living standards to pay for them. Even where they were affordable, they prevented access to justice in cases where bringing a claim was deemed ‘futile or irrational’. He also found that fee levels had no relation to the amount sought, which deterred claims for small amounts.
He noted that the primary objective of the fee regime was to transfer the cost burden of operating these tribunals from the general taxpayer to users of the system.
Although this had been achieved to some extent, he highlighted that it had not been demonstrated that lesser fees would be any less effective. He also agreed that the fees imposed disproportionate limitations on the enforcement of EU employment rights.
Lady Hale, who dealt with the discrimination issue, accepted that the regime was indirectly discriminatory. She highlighted statistics that showed that type B claims – those that charge the highest level of fees and relate to issues such as discrimination – were more likely to be brought by women.
As a result of this ruling the 2013 Fees Order has been quashed and claimants cannot now be required to pay fees. The Supreme Court also made clear that all fees paid between 2013 and now must be refunded.
Caroline Acton, Solicitor at ESP Law, said: “The Supreme Court ruling does not necessarily prevent an alternative fee structure from being re-introduced in the future but, given the ruling, any fees payable would need to be set at a level everyone can afford.”
Going forward, Acton warned that employers are likely to see “a rise in the number of employment tribunal claims and [there is] also a potential argument from those who did not bring a claim because they could not afford the fees.”
The full judgment of UNISON v The Lord Chancellor [2017] UKSC 2015/0233 can be found here.
