A monumental Supreme Court decision has just held that Employment Tribunal fees (which were introduced by the Government in July 2013) are unlawful, following a protracted legal challenge by the trade union, Unison, who were supported by the Equality and Human Rights Commission
Tribunal fees have been controversial ever since they were introduced, where (depending on the type of case) claimants have had to pay between £390 and £1,200 to have their case heard by an Employment Judge. The introduction of Tribunal fees saw a sharp decline in Tribunal cases almost immediately, with a drop in Tribunal claims by as much as 80%.
Fees have been described as a barrier to justice, impacting disproportionately on lower paid workers where, in many cases, it is not worth one’s while to issue proceedings. For example, many unlawful deductions from wages claims involve relatively small sums of money of a few hundred pounds which are nonetheless essential to those who are owed them. However claimants must outlay £390 in Tribunal fees to recover unpaid salary (and the Tribunal fees are only recoverable from the employer if the claimant succeeds). In all but the rarest of cases, the outcome of a Tribunal claim can never be guaranteed and so potential claimants are deterred from issuing proceedings.
One main objective for the introduction of Tribunal fees was to weed out spurious or weak claims which were thought to be clogging up the system. But the evidence suggests there was little or no reduction of such cases. On the contrary, the main reduction was amongst claimants with credible claims, who have just taken a commercial view against issuing proceedings because it involves too much of a gamble.
The Supreme Court also placed emphasis on the constitutional reasons as to why excessive Tribunal fees were unlawful, in a climate where judicial intervention is needed to curb the erosion of basic freedoms and access to justice by the Government of the day.
The immediate consequences of the judgment are that employment Tribunal fees will no longer be payable with immediate effect. Also, in accordance with a previous undertaking from the Lord Chancellor, all fees paid in the past now need to be reimbursed and we envisage an accessible claims system being put in place for that. Going forward, this decision sets the bar as to the approach the Courts should take against any future barriers imposed by the Government which impinge upon our access to the Common Law.