Many will have seen in the news, but for those who may not be aware, there has been a landmark ruling by the Supreme Court in R (Unison) v Lord Chancellor, that employment tribunal fees are unlawful. Before I embark on what this means moving forward, let me take you back to when it all started. A potted history Employment tribunal fees (fees) were initially introduced in the Employment Tribunal on 29th July 2013 by the Fees Order 2013 (Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893)).
There were two fees payable (the issue fee and the hearing fee), depending on the type of claim (Type A and Type B). There were also additional fees such as submitting a counterclaim, applying for a review or and appeal. In addition, subject to the claimant’s financial circumstances, there was a fee remission scheme, in respect of either all or part of the fee. If the fee was not paid (or remission application made) the claim was rejected. Judicial Reviews Since July 2013 there have been a number of challenges on the lawfulness of introducing fees in respect of it preventing access to justice.
Put simply, arguments were advanced that employees would be financially put off from raising claims against their employers because of the cost to sue. Indeed, the number of claims rapidly dropped following the fee introduction and therefore employers have been relatively robust in their position on defending claims, knowing that in all likelihood, the individual employee was unlikely to pay to proceed with their complaint. The trade union Unison first applied for judicial review of the fees in the High Court in February 2014 but it was dismissed.
At the time the Court felt that the challenge had been brought prematurely and lacked robust evidence to show the fees were preventing access to justice. Later that year (December 2014) a second application was made and again this was struck out, on the basis that there was insufficient evidence to support a drop in claims since the introduction of the fees. Moving into the Spring of 2015, Unison appealed the two decisions to the Court of Appeal who dismissed the appeal finding the decline in cases was unlikely to be entirely due to Claimants not being able to pay.
Fast forward to the present, and Unison applied for judicial review at the Supreme Court who, on 26th July 2017, in a unanimous decision, found that the Employment Tribunal fees were unlawful and quashed (effectively cancelled) the Fee Order 2013 requiring fees to be paid. In so deciding, it was held that: the fees had prevented access to justice; it was indirectly discriminatory, putting primarily women at a disadvantage (as it was found there was a greater proportion of women than men having to pay the higher fee due to the majority of discrimination claims were brought by women); it went against the Parliamentary legislation granting employment rights; and it was contrary to EU law. Where we are now The effect of the Supreme Court’s decision is that all fees paid since their introduction on 29th July 2013 must be reimbursed. Equally all fees moving forward are no longer payable. As such the employment tribunal service is already updating the online system to lodge a claim so in the interim period, applications will be made by post.
In practice, Employment Tribunal claims are going to rise and we have already seen a number of claims come through the Tribunal system in the last couple of weeks. All claims brought in reliance of this decision will be made in accordance with administration decision of the Ministry of Justice and Her Majesty’s Court Service, which should be released shortly. This means those who want to reinstate claims there were dismissed or struck out for non-payment of the fees. Needless to say, if these claims are permitted to be reinstated, the life of an employment solicitor is going to become very busy.
In respect of processing refunds, the Employment Tribunals are working on this as we speak. It will be somewhat of a mammoth task as part of the process will be to ensure the correct people are refunded, as there are no doubt claims involving multiple claimants and those where the Respondent was ordered to pay the Claimant’s fees. We are advised we should hear more in September. Finally, there was discussion over whether a replacement fee regime would be put in place, i.e. a fee requirement albeit on a much lower value, however, this is unlikely to happen in the short term given the Government’s present position with a slim majority.
For further information about the above or any employment law matter, please contact Kirsty Swan of Swan Craig Solicitors on 01172 140 132 or email Kirsty@swancraig.co.uk.
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