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In a landmark ruling, the Supreme Court has today ruled that Employment Tribunal fees are unlawful.  The case against the government, which introduced the Employment Tribunal Fees Order in 2013, was brought by Unison who had appealed a previous ruling against them. 

In response, the government has now confirmed that it would cease taking fees for Employment Tribunal claims immediately and will reimburse all those Claimants who had paid for claims, back to 2013.  Given that these fees have raised many millions of pounds over the last four years, this will be a lengthy and expensive undertaking for the government.

Until today’s ruling, the cost to issue a claim in the Employment Tribunal was either £160 or £250 initially, depending on the type of claim (or claims) brought.  If the matter then proceeded all the way to a final merits hearing, the Claimant was required to pay a hearing fee of either £230 or (more often) £950, again depending on the type of claim (or claims) brought.

It has been widely publicised in the past that the introduction of fees, which as shown above could be as high as £1,200 in total (but in fact as much as £3,000 in the event of an appeal), was followed by a significant reduction of claims being brought in the Employment Tribunal of around 70-80%.  For those opposed to these fees, they were seen as a barrier to access to justice, which allowed employers to get away with poor treatment of employees in the workplace. For those in favour, they were seen as a necessary means to filter out spurious claims against employers.

The Supreme Court ruled today that the fees effectively prevented access to justice.  This was both in terms of unaffordability and due to the fact that they could render the bringing of a claim futile or irrational; if, for example, a Claimant wanted to bring a claim where a financial award was not sought (such as a claim to enforce a statutory right), or if a financial award was sought but it was lower than the fees that had to be paid for the case to be heard, a Claimant would be understandably put off from bringing that claim by the fees.  It was also held that the fees were discriminatory, because they disproportionately affect specific groups of people in society, such as women for example.

Danielle Lister, Partner and Head of Employment at Chattertons commented: “The issue of fees in the Employment Tribunal has been a contentious issue for many years now, ever since their introduction four years ago.  Many people are believed to have been put off brining claims as a result of the fee regime and the Supreme Court’s judgment today acknowledged that fact.  Today’s ruling will no doubt be welcome news for Claimants and prospective Claimants who either have brought, or want to bring claims in the Employment Tribunal for what they perceive to be unlawful treatment in the workplace. 

Many employers on the other hand may not welcome this news, as they may be fearful of unmeritorious claims being issued against them and where an employer believes they have done nothing wrong; something the fee regime was generally aimed at preventing when it was first introduced. 

The government has now made a commitment to repay the fees incurred by Claimants over the last four years, although we are yet to see how this will work in practice.  However, this will no doubt be a very costly exercise for the government at a time when public finances are already stretched”

So, what will happen next?

As stated above, the government have confirmed that fees already paid will be reimbursed.  It is not yet clear what the timescale and process for this will be and what, if any, action will be required of those who have already paid these fees in the last four years in order to claim back the costs incurred.

It will also likely cause a lot of work for the Employment Tribunals Service in amending their processes and rules.  The online claim form will have to be amended.

Many people have also already started to raise the question of possible recourse where a potential Claimant was put off bringing a claim by the fees, perhaps a number of years ago.  Their claims are likely to be long out of time now.  We will watch with interest whether any action will be taken to address those individuals who feel they have been denied access to justice as a result of the fee regime and for whom it is now too late to take action.  So far, there has been no indication that any action will be taken to address this particular issue and it is possible that those people will have simply lost their chance.

Whilst at this stage, there are still many questions that remain unanswered, if you are a Claimant who has paid a fee for an Employment Tribunal claim since 2013 and would like any further advice on this issue or require assistance in recovering what you have already paid, please feel free to contact the Chattertons Employment team who will be happy help.