October 2017

Supreme Court rules tribunal fees are unlawful

The Supreme Court has ruled that fees to issue claims at the Employment Tribunal are unlawful.

In 2013 the coalition government introduced fees for employees to issue claims at the employment tribunal. There were some cases where claimants with limited means were excused fees. The fees structure was such that they were claimant loaded. The government argued that employers were being burdened by speculative, weak and malicious claims brought by disgruntled employees and were caught between a rock and a hard place in weighing up the respective economic and commercial merits of fighting a claim (thus incurring legal fees and expanding precious management time) or getting their cheque book out just to make the issue go away.

The government's intention certainly worked but possibly not for the reasons they intended. The fees ranged between £390 and £1200. In the three years since the fees were introduced the number of employment tribunal claims fell by 79%.

A challenge to the fees regime was made in the courts by UNISON, with this case reaching the Supreme Court who handed down its decision today.

In the judgment Lord Rees said, "The prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups."

This means that the government will have to pay about £32M in fees to people who were required to pay them.

Whilst the effect of this judgment is uncertain the BPIF considers that this is likely to result in an increase in the number of tribunal claims issued.