Unison’s challenge* to the Employment Tribunal fee system has succeeded. The Supreme Court’s decision today has turned the whole of the Government’s policy on the Employment Tribunal fee system on its head.
It has been held that the fees which were introduced for Employment Tribunals in 2013 unlawfully restricted access to justice and had a discriminatory impact. The court unanimously ordered that they should be quashed with immediate effect.
Consequently, as of today fees cease to be payable for claims made in the Employment Tribunal and in respect of any appeals to the Employment Appeal Tribunal.
The Employment Tribunal system will also have the administrative nightmare of having to repay the fees already paid by claimants.
The Court was convinced that the level of fees effectively prevented access to justice despite the provision allowing for claimants to apply for remission on grounds of financial hardship. The statistics showed that there had been a sharp and sustained drop in the number of claims.
The fees were also found to be indirectly discriminatory. Higher fees are payable for discrimination claims than for some other employment claims. This had placed certain claimants at a disadvantage. The example given was that a higher proportion of women than men brought discrimination claims and so were placed at a particular disadvantage when compared with men. It was possible that indirect discrimination could be justified but the Court was not convinced that there was evidence that the fees were proportionate.
There may be fears that the decision will open the floodgates to nuisance claims. However, the Employment Tribunal does have the power to award costs where it is found that proceedings have been brought unreasonably and there have been signs that this power is now being used more by Employment Judges.
The practical impact is that employers will now have to take into account that the removal of fees will mean that employees are more likely to bring complaints. As a result, steps should be taken to ensure that policies and procedures are followed in order to minimise the risk of claims. There is still the Acas Early Conciliation Scheme in place so there is a further opportunity to settle disputes prior to claims being submitted to the Tribunal.
In the immediate future there is also the position regarding the repayment of fees. The Employment Tribunal Service will likely contact claimants that have paid fees but in many circumstances the employer will have reimbursed the fee already. Will the employer then have the right to be reimbursed? That will no doubt be an issue that will have to be addressed.
Looking further in the future, will access to the Employment Tribunal remain free or will the Government seek to introduce another fee system? It would appear that any new fee would have to be set at a much lower level if they are to survive a challenge.
Join the Gateley Plc Employment Team at the HRXChange Autumn Update to discuss the implications of the Supreme Court decision on fees and other key employment law developments.
*R (on the application of UNISON) v Lord Chancellor 2017 UKSC 51
This blog post was written by Christopher Davies. For further information, please contact:
Christopher Davies, professional support lawyer, Employment
T: 0161 836 7936