Employment Tribunal Fees Decreed Unlawful

In an extraordinarily far-reaching decision today (21 July 2017), the Supreme Court has declared that the introduction in 2013 of fees at the Employment Tribunal for employees seeking redress against employers was unlawful. In a comprehensive ruling, the Court ruled that the introduction of the scheme was:

1. Not within the government’s power legally as it effectively prevented access to enforce the rights given to employees under the employment legislation.

2. The introduction of fees was contrary to EU law regarding workers’ rights and therefore unlawful.

3. In relation to discrimination claims, the introduction of fees indirectly discriminated against women (who are the most likely group to bring this type of claim).

Employment Tribunal claims fell by over 70% following the introduction of the fees regime. It would be unlikely that all of those “lost” claims would be frivolous so it appears that many will have been denied access to justice.

The Court explained why “the idea that bringing a claim before a court or a tribunal is a purely private activity, and the idea that such claims provide no broader social benefit, are demonstrably untenable”. In order to allow the courts to properly apply legislation and the common law, “people must in principle have unimpeded access to them’. Without that access, “laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade”.

The court concluded that ‘This is why the courts do not merely provide a public service like any other’.

With some estimates as high as £30m, the government is now required to repay fees to those who were required to pay such fees to bring their claims previously. The decision takes effect immediately so the government has plenty of work to do to implement this element.

This ruling does not rule out the possibility that the government will re-introduce fees in the future but it will need to take account of the judgment and introduce fees that are perhaps more proportionate in order to avoid the ire of the Supreme Court again.

For employers who have taken the time to understand their obligations to their employees, there is nothing to fear here. Clear and communicated policies and procedures that provide the foundation of fair treatment of employees will avoid claims in any event which have no upside for employers in terms of cost and management time. Getting the clearest legal advice in this regard is vital and Buss Murton Law has considerable expertise in this area. Should you need to consider these issues please get in touch and our expert employment lawyers will be available to assist you.