Supreme Court rules that employment tribunal fees are unlawful

The Supreme Court has handed down it's Judgment deciding that employment tribunal ("ET") fees are unlawful, and that they are indirectly discriminatory. This follows a four year appeal by Unison.

The Fee Order, which came into force on 29 July 2013, made it mandatory for a (former) employee issuing a claim in the Employment Tribunal or the Employment Appeal Tribunal to pay fees. The fee to issue a claim was between £160 - £250, and the hearing fee was between £450 - £950. Unison argued that the Fees Order unjustifiably interfered with the right of access to justice under both the common and EU law.

Following the introduction of the Fee Order, there was an immediate 70% reduction in claims.

What are the immediate changes?

The Government is taking immediate steps to implement the Judgment as demonstrated by the fact the Tribunal has placed its website under maintenance, with the following statement 'Please note with immediate effect there are no fees payable for employment tribunal proceedings. Please ignore any reference to fees on the claim form.'

We await to hear what changes will need to be legislated, and how the ET rules will be amended.

The government will also have the added headache of having to refund those fees that have already been paid, having announced its intention to do so. Working out the logistics of refunding more than £27 million to thousands of Claimants is going to be a tall ask which could take a long time.

What will be the future impact?

We anticipate an increase in ET claims by Claimants who may have previously been unable to do so. Whether the number of claims issued will be to the same extent as they were prior to the implementation of the Fee Order is yet to be seen.

There may also be a claim made by employers who have paid the fees as part of a settlement or at a tribunal hearing.

At the moment things are somewhat unclear so watch this space for further updates.

You can review the Judgment here

Send us a message