The Supreme Court has declared Employment Tribunal fees, introduced by the Government in 2013, unlawful. The decision is hugely significant. It means that, as from today, employees making claims against their employers will no longer have to pay Tribunal fees. It also means that any claimants who have paid Tribunal fees since 2013 will have to be reimbursed.
Access to the courts
The decision has reiterated the existence of a constitutional right of access to the courts that is an essential element of the rule of law and, once again, that it is the rule of law that trumps everything and everyone including, in this case, Her Majesty’s Government. We are back to Magna Carta.
The Supreme Court also found that the introduction of Tribunal fees unlawfully discriminated against women. A higher proportion of women bring discrimination cases, which cost more for claimants because of their complexity and the longer hearings that result.
The Government now faces a bill of £32M for the reimbursement of unlawfully charged Tribunal fees, as well as the loss of revenue going forward. There are also likely to be wider consequences following this decision. Court fees have been charged for many years in all other parts of the court system, such as the High Court and County Courts. Will these now also be subject to attack?
In the employment arena, the number of claims that have been issued in Tribunals has dropped by around 70%, since the fees were introduced in 2013. This reduction in claims is no coincidence; claimants have been discouraged from bringing claims, particularly where awards are likely to be lower, because the fees were disproportionately high.
In other cases, people have simply been unable to afford them because of financial hardship (an obvious consequence of losing your job). The normal deadlines for bringing such claims will, in most cases, have long-since passed. Will individuals who did not pursue claims now be able to issue them out of time, on the basis that they were unlawfully prevented from bringing them within the normal limitation period? The argument that they should be able to do so appears strong and is likely to be tested before the Employment Tribunals before long.