Most UK employment rights are enforceable through the Employment Tribunals. Historically, Employment Tribunals were set up so that the layperson could bring a claim without the costs of representation and any legal costs are usually borne by each of the parties, unlike the civil courts where the losing party usually bears both parties’ costs.

In certain circumstances, an appeal can also be made to the Employment Appeal Tribunal. Until 2013, a claimant could bring and pursue proceedings in an employment tribunal and appeal to the Employment Appeal Tribunal without paying any fees.  The idea behind the introduction of fees was to deter unmeritorious claims and to encourage earlier settlement.

The Fees Order of 2013 brought in issue fees which were to be paid when a claim form was submitted and a hearing fee which was payable prior to the hearing of the claim. The amounts depend on whether the claim is brought by a single claimant or a group, and what type of claim it is. For a single claimant, the fees total £390 for a less complex claim and £1200 complex cases likely to have longer hearings.  There are exceptions where a claimant can get a remission of fees, the amount of remission is dependent on the family income and the number of children they have.

As a result of the fees, tribunal claims have dropped by 79% over the last three years.

Trade Union’s argument

The trade union, UNISON, argued that the making of the Fees Order was not lawful because the fees interfere unjustifiably with the right of access to justice under both the common law and EU law, go against the purpose of Parliament granting employment rights, and discriminate unlawfully against women and other protected groups.

Supreme Court Judgment

The Supreme Court has decided unanimously to allow the appeal because the fees order has the effect of preventing access to justice and is therefore unlawful. It was also decided that the Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for discrimination claims put women at a particular disadvantage, because a higher proportion of women bring discrimination claims. The charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order.

Next Steps

The government has undertaken to refund tribunal fees which will be an administrative nightmare as some will have been paid by insurance companies, trade unions and employers.

Already today, Tribunals are refusing to take payment of fees on claims submitted in person but will amend the online system (which still requires payment) as soon as possible.

Tribunal claims over the coming months may include claims from claimants that argue they could not afford the fees and therefore missed the deadline to bring their claim but now seek to have their claim heard after the deadline.

Employers will be less relaxed as tribunal fees were a large bargaining chip, particularly in low value claims. Although the number of claims is unlikely to increase by 79%, there is likely to be a significant increase.

Please do not hesitate to get in touch if you have any queries on any of the above.

If you have any questions about this subject or any employment-related legal issues, please contact your dedicated employment law solicitor. Alternatively, please call us on 01483 411 533 and we would be delighted to assist you.