The Supreme Court has ruled today that the introduction of fees for Employment Tribunal cases stopped access to justice and is therefore unlawful.
This landmark judgment means that from today, fees for Employment Tribunal Claims and Employment Appeal Tribunals are no longer be payable. Additionally, anyone who’s already paid these fees since their introduction back in 2013 will have the right to a refund.
Unison has been fighting the introduction of these fees through the courts. They lost two hearings in Divisional Courts and in the Court of Appeal. However, they were given permission to appeal the Court of Appeal’s decision at the Supreme Court at a hearing in March this year.
The Supreme Court decided that charging fees to bring a claim in an Employment Tribunal or and Employment Appeal Tribunal are not legal as the fees set were too high for most people to afford, stopping access to justice.
This was evidenced by the drop off of claims following the introduction of fees with a reduction of 79% in claims over a three year period.
Even though there was the exceptional power of remission in place, which allowed people to apply to have their fees waived due to personal hardship, this was only used 51 times in a 17 month period – on average only 3 times a month.
To support this conclusion there was evidence that the level of fees discouraged people from bringing smaller claims. Where someone had a claim of £500, with a tribunal fee payable of £390, it’s highly unlikely that they would take the claim forward without the certainty of being paid in full, and this can never be sure with any claim going through the courts.
The Government’s aim with the introduction of employment tribunal fees was to deter weak or false claims, but the Supreme Court ruled that they had not demonstrated how the introduction of fees had achieved this.
As a final nail in the coffin, it was held that the introduction of tribunal fees was indirectly discriminatory against those with a protected characteristic. They decided that the fees had an additional impact on women and that this was not justified in achieving a valid aim.
Alex Lyttle, Employment Law Solicitor at Meade King said: “it will be interesting to see how this decision will affect the volume of employment law claims, specifically those cases being taken to tribunal.
In the longer term, whether the Government continues with a no fee approach or tries to lower them instead remains to be seen”.
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