Supreme Court quashes the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013
The Supreme Court ruled on the 26th July 2017 that the Government's employment tribunal fees are "illegal" and preventing people access to justice.
The Supreme Court did not rule against the fees themselves, rather that they should be set at a level that everyone can reasonably afford. Access to justice will be all the more important when it comes to enforcing rights that may be at risk after Brexit
Employment tribunal fees were originally introduced in 2013 with the intention to cut out malicious and weak cases. To bring a claim it was costing claimants up to £1200 in fees.
Following the introduction of the fees four years ago, a government review found the number of cases taken to employment tribunals had fallen by 70%.
Cases sent to employment tribunals
Source: Ministry of Justice
Unison, the UK’s largest trade union, brought the claim arguing that the high fees discriminated against workers.
The Supreme Court said: “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.”
In their ruling, the court said: "A significant number of people have found the fees unaffordable."
Unison general secretary Dave Prentis said: "It's a major victory for employees everywhere. Unison took the case on behalf of anyone who's ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand.”
"These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.”
The Supreme Court did not rule against the fees themselves, rather that they should be set at a level that everyone can reasonably afford. Access to justice will be all the more important when it comes to enforcing rights that may be at risk after Brexit.
What does this mean for employers?
- Increase in employment tribunal claims:
As this is a widely publicised topic the risk of employers facing more employment tribunal will increase immediately. Employers will need to take extra care when dealing with HR/employment issues, we advise to react appropriately and quickly when complaints are initially raised.
- Potential Legal challenges:
With the decision that employment fees are unlawful. Previous claimants that could not claim previously may attempt to bring claims now. Usually there is a time limit of employment cases however there is an argument that claimants could not pursue the claim at the time, therefore preventing them from justice. The Supreme Court did not deal with this issue, inevitably further cases will emerge.
- Delays in the employment tribunal system:
The tribunal system will now face two issues. First, it will have to adapt the current system to a new system without the requirement of fees plus dealing with refunds from unlawful cases. Secondly, it will have to accommodate for an influx of claims. This will likely slow up the process and cause delays. Currently, the online filing service to bring a claim has been suspended whilst being amended and claims can only be filed in hard copy.