July 26, 2017

Tribunal Fees – down and out

employment tribunal fees, refund chequesThis is a fight about the access to justice. In 2013 the government brought in fees for making claims in the Employment Tribunal. Since then claims have gone down by around 79%. Unison brought a claim to quash the right to charge fees. The Supreme Court has now agreed with them and held the right to charge fees is illegal.

Why fees are unlawful

The court gave several reasons for deciding the fees are unlawful. One reason is that the fees are greater than in comparable small claims court cases. The right to bring an employment Tribunal claim is a statutory right, granted by Parliament. The court pointed out that this right shouldn’t be affected by the terms of a statutory instrument (which introduced the fees) as this was only introduced by a minister. Overall employment tribunal cases and their decisions are important for society and fees can prevent cases being brought. This includes limiting people’s right to make claims relating to EU based rights. The point was also made that higher fees for some claims including discrimination ones is indirectly discriminatory.

The effect

Whatever the reason for ruling against fees, (and the reasons may be of little interest to you) what effect will this decision have? Well….

  1. The government has already announced that it will immediately stop requiring fees to be paid.
  2. It will take steps to refund all previously paid fees (to employees or losing employers who were ordered to pay the fees).
  3. Repayment of fees will be expensive (the fees alone amount to approx. £32m) and the process will be time consuming.
  4. The current procedures will need realigning e.g. online claim forms need changing.
  5. The government is likely to start a consultation about a new fee structure. It will probably be at a lower level or even payable by the employer.
  6. Those who didn’t make a claim because of the fees may try to argue that they are not out of time to bring a claim now. They may argue this on that basis that previously it was not reasonably practical to make the claim because of the fees.

Good for employees

For employees all this is good news. It will make it easier and cheaper to start a claim. Though employees should remember that there are still some costs risks particularly if they put forward misconceived or vexatious claims. Employers are likely to face more claims. The only good thing from their point of view is that if they lose they won’t be ordered to pay the tribunal fees. Similarly employers who have been ordered to pay the fees since 2013, will get their money back.