In a dramatic decision, the Supreme Court has held that the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (which introduced the charging of fees into the employment tribunal system) is unlawful and discriminatory.
This challenge to the employment tribunal fees regime, brought by the trade union UNISON, has now been running for over 4 years. UNISON won their argument that tribunal fees are a barrier to access to justice.
The Court observed that many claimants are seeking relatively small sums of money (for example unpaid wages) or non-financial remedies (for example a claim for a written statement of particulars of employment). The Court found that the fees bear no relation to the value of the claim and in effect render it “futile or irrational” for a claimant to pursue a claim that might be of huge personal importance but relatively low monetary value.
In the Court’s view, it did not matter that there was a chance that successful claimants might be able to recover fees from their employer. The Court emphasised that access to justice must be available to all claimants, not just those who win.
The Court also found the Fees Order to be indirectly discriminatory because a greater proportion of women than men bring discrimination claims in particular.
What does this mean for HRE clients?
The Government will cease taking fees for employment tribunals immediately and begin the process of reimbursing fees back to 2013. Itis therefore possible that you will see an immediate increase in claims, possibly by as much as 70%, which was the drop we saw in tribunal claims in 2013.
However, it is unlikely that fees are gone for good. The government will have to go back to the drawing board to work out a differently structured charging regime.
A word of caution
This also throws up the question of what will happen to claimants who were deterred from bringing a claim because of the high level of fees. This was not addressed in the recent decision. However, it is possible that employees who chose not to bring claims may now do so, on the basis that it was “not reasonably practicable” for them to bring a claim when the unlawful fee regime was in place.
As ever, we will keep you updated as more information is available.
If you need any additional information please contact advo hr here.