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BREAKING: Employment Tribunal fees unlawful

The Supreme Court has today ruled that the Employment Tribunal fees introduced in 2013, which led to a 70% reduction in the number of claims being submitted, are unlawful.

In its judgment, the Supreme Court compared the fees in Employment Tribunals to the small claims court and noted that it was far cheaper to bring a claim for a small sum of money. The Supreme Court determined that employment rights are granted by statute created by Parliament and that prescribed fees interfered unjustifiably with the right of access to justice at common law.

Ultimately, the fees prevented access to justice, particularly for the most vulnerable. They also imposed unjustified limitations on the ability to enforce employment rights arising from EU regulations, and were therefore unlawful under EU law.

The case has been widely publicised and the Ministry of Justice has already announced that the government will take immediate steps to stop charging fees (indeed, reports are coming in of Employment Tribunals already accepting claim forms without the usual fees) and also to refund payments already made. However, it is unlikely the fees regime will disappear overnight, if at all. Rather, the government is likely to now begin a consultation on ensuring a fair fees regime that still ensures access to justice – given the comments of the Supreme Court, this could be similar to the small claims court fees regime. The Tribunal Rules of Procedure and the online claims process will also need to be reviewed and changed, which will take time.

Whilst the Lord Chancellor has stated that refunds for all Employment Tribunal fees will now be processed, this will be far from an easy process. Claimants pay the fees prior to the hearing but, if they are successful at the hearing, the tribunal will usually have ordered the Respondent to pay the fees. How these will now be refunded is not clear and there will no doubt be a significant backlog of refund claims.

There is also now a possibility of claimants applying to the Employment Tribunal to extend the time limit to bring a claim that would otherwise be out of time on the grounds that it was not “reasonably practicable” to bring the claim whilst fees applied. This could in principle see historic claims get resurrected, though it remains to be seen what kind of cap may be put on this in practice.

The decision has been welcomed by unions and lawyers alike. What it will mean in practice, however, remains to be seen.

The full judgment is available here.

If you paid tribunal fees in the past four years, or wish to understand how this decision may otherwise affect you, please contact our Employment & Immigration Partner, Matthew Cranton (matthew@solts.co.uk).

26 July 2017

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.