Employment Tribunal Fees are unlawful, Supreme Court rules

In one of the most striking decisions concerning employment law for some time, the Supreme Court has ruled that the government was acting unlawfully and unconstitutionally when it introduced tribunal fees in July 2013.

Employment Tribunals deal with a broad range of claims, including those for unfair dismissal and discrimination. Prior to the introduction of fees, the criticism had been that there was little stopping claimants bringing claims that were groundless or malicious in intent, with a view perhaps to obtaining a payment from a former employer to stop the case going ahead. The introduction of fees was, in part, a means to prevent these types of vexatious and baseless claims from going ahead.

Yet the introduction of fees, especially at the rates laid down by the rules, was controversial right from the start. The fees are payable at different stages of the case and can be up to £1,200 if a matter proceeds all the way to a hearing. Exemptions from paying fees are available, but as with the Legal Aid, these are restrictive in nature and are not applicable to most claimants.

Those seeking justice through the Employment Tribunal are often in a difficult position financially, especially if they have recently lost their job. This is especially so when the time period to bring an employment claim is so short. Gambling such fees, which to most of us are significant sums of money, will put many people off.

I know from personal experience of people with good cases, where the injustice is there for all to see, who have not gone ahead after deciding they are not in a position to pay the fees involved. Fees have, in short, lead to a substantial decline in the number of people exercising their rights. If this is so, the next question has to be, are the rights worth having in the first place if people are unable in practice to access them?

Interestingly, even the Confederation of British Industry (CBI) voiced its concerns about the high level of fees. Rob Wall, the CBI’s head of employment policy, has stated that while supporting the principle of fees to prevent vexatious claims, “we have never called for the level of fees the Government has introduced.” If even an organisation representing employers takes this position, something must be seriously wrong.

The decision of the Supreme Court has lead to the government stating it will immediately cease requiring the payment of fees and will go further and refund the payment of fees to those who have paid them previously. We will see if the number of claims at the Employment Tribunal recovers and yet there are two rather interesting points that follow. Firstly, there will have been many people who have been denied justice since July 2013 following the requirement to pay a fee to bring a claim. Secondly, it is notable that the government managed to take this unlawful decision despite all the criticism and controversy at the time. Perhaps this case will dissuade the government from continuing its apparent campaign to increase Court and tribunal fees whenever possible, especially as it has been demonstrated that unlawfully introducing or increasing them directly impedes the pursuit of justice.

The full Judgement can be found here: https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf