Employment Tribunal fees are unlawful

Employment Tribunal Latest

The government has released the latest set of Tribunal statistics for the period October to December 2018. They make stark reading for business owners and directors.

The UK’s highest court, the Supreme Court, has unanimously ruled that fees in respect of Employment Tribunal and Employment Appeal Tribunal proceedings are unlawful.

The Ministry of Justice has said that it will take “immediate steps” to stop fees being charged and will arrange for refunds to be made to those who have paid the fees since they were introduced four years ago. It is estimated that this will be more than £27 million!

Background to the case

Access to Employment Tribunals and Employment Appeals Tribunals were free until 29th July 2013.

The aim of the fees was to transfer the cost of the tribunal system from taxpayers to those who actually use the service, to put people off from making unmeritorious claims, and to promote earlier settlement of disputes.

Fees vary in accordance with the type of claims and whether they are brought by a single claimant or by a group. As an illustrative example, the fee payable by a single claimant for submitting a type A claim to an Employment Tribunal is £390 and the fee for a single claimant under a type B claim is £1200.

It has been widely reported that the introduction of the fees has resulted in a dramatic fall in the number of cases being brought before Employment Tribunals. The change was particularly criticised by trade unions who launched legal action stating that the fees unjustifiably impacted on the right of access to justice, frustrated the operation of law granting employment rights and discriminated against women and other protected groups.

A review assessing the impact of the introduction of the Employment Tribunal fees was published by the Ministry of Justice earlier this year. It concluded that the introduction of fees has fulfilled the desired objectives. It was admitted that “while there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.” They also found that there was no proof that maternity and pregnancy discrimination claims had particularly felt the burn of the fees and decided that there was no reason for the fees for these claims to be slashed.

The Supreme Court’s ruling

In the landmark case, the Court held that the government was acting unlawfully under both UK and EU law. It stated that the fees had the effect of preventing access to justice and it must be quashed immediately.

It also said that the fees are indirectly discriminatory against women. This is because a higher number of women bring type B claims (for example, discrimination and equal pay) than type A claims and this put them at a particular disadvantage when compared with men.