Tribunal fees held to be unlawful by the Supreme Court

Posted on July 26, 2017

In a significant decision, the Supreme Court has ruled that tribunal fees introduced by the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (the 2013 order) are unlawful. The decision opens up access to justice for those who need to enforce their employment rights.

The Supreme Court’s ruling is a major success for Unison, the trade union who challenged the 2013 order. It is also a substantial boost for all employees who want to enforce their employment rights in the workplace.

What are the current fees?

Example of the current fees under the 2013 order are:

£1,200 for unfair dismissal, equal pay, discrimination or whistleblowing claims; and
£390 for unpaid wages, redundancy pay and breach of contract claims.

(These figures include the claim and hearing fees.)

The high level of the fees has meant that many are not able to afford to go to a tribunal and have therefore been denied their rights to access justice.

The issues dealt with in the decision

The Supreme Court had to review many issues in the ruling relating to the rule of law and access to justice and in particular:

the marked difference between the cost of bringing a claim in a tribunal as compared to starting a claim in the small claims court; and
the vital importance to society of ensuring individuals can protect their employment rights and access justice by bringing a claim to a tribunal.

An order that stops an individual from accessing justice is unlawful - and the court ruled that the 2013 order does exactly that. It limits an individual’s right to enforce their European Union (EU) rights under EU law.

What does the decision mean?

On tribunal fees

Changes to the Employment Tribunal fee system are now inevitable – although it is unlikely to be totally abolished.

The Employment Tribunals Service will need to make procedural changes to tribunal rules and the online claims system.

Tribunal fees paid since the 2013 order was implemented will need to be refunded. (This could be a messy process.)

Individuals who could not afford to make a claim might argue they should now be allowed to make their claim - even in those cases where the limitation period has passed.

For employers

Employers are not likely to welcome the decision as it will mean that more employment claims are likely to be issued.

As well as ensuring access to justice for employees with justifiable claims – and properly so - the decision will also enable more employees with potentially spurious claims to take action. For employers, defending such spurious claims takes up management time and incurs fees and expense.

This ruling highlights the need for employers to ensure that fair procedures are carried out and that their policies to implement these procedures are up to date. It is more important than ever for employers to obtain employment law advice before making decisions that affect their staff’s rights.

For employees

Future reduced fees will enable more employees/workers to access justice who previously would not have been able to afford the fees to take a claim to tribunal.

Contact

For more information about the 2013 order and tribunal claims, please contact Susan Mayall on 0161 684 6948 or Kate Hunter on 0161 785 3500 or make an enquiry.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.