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What does the Employment Tribunal Fee ruling mean?

As you have probably already heard the Supreme Court has decided that the current Employment Tribunal fees (the fees that an employee has to pay when they want to bring a claim against their employer) are in fact unlawful.

There has been huge controversy surrounding the implementation of Tribunal Fees in 2013, which lead to a 70% reduction in Tribunal claims. Great news for employers, many commented that the introduction of fees had reduced the amount of vexatious and unwarranted claims. On the other hand, many employees (and Unions) argued that the fees restricted access to justice for the ordinary employee as they could not simply afford to pay the fee in order to bring a claim.   

Unison applied for a judicial review, that the Tribunal Fees were unlawful arguing that:

The scheme was unlawful because it infringes the EU principle of effectiveness. The cost of fees meant it was virtually impossible or at least exceptionally difficult for the majority of potential applicants to bring a claim, reducing their employment rights;

The fee scheme operates in an indirectly discriminatory way with respect to women, ethnic minorities and the disabled, and that this disadvantageous treatment was not justified

The Supreme Court agreed that the fees are in fact unlawful. Not only does it prevent access to justice but it also imposes unjustified limits on the ability to enforce EU rights.

It was also decided that the higher fees for more complex claims (such as discrimination and whistleblowing known as “type B” claims) is indirectly discriminatory against women as they represent the majority of people who bring these types of claims.

What Now?

It is unlikely the fees regime will be abolished entirely. It is likely that the Government will issue a consultation paper and then bring in a new fees regime, possibly with fees at a lower level and/or involving a fee also payable by the employer.  However right now, the Employment Tribunal’s rules of procedure will need to be amended. 

All Tribunal fees paid by employees since 2013 and July 2017 will be refunded.  

The number of Tribunal claims may well start to rise again and we may start seeing pre 2013 numbers of claims again

There may also be employees trying to raise claims outside of the normal time limits on the basis that they were prohibited from doing so earlier due to the unlawful fees that they would have had to pay.

Only time will tell us what is going to happen, so watch this space.  What we do know for sure, is that there will be some uncertain times ahead.

For more information on this or any employment query please contact me or another member of our Employment Team

You can read more information in our blog, 'What does the Employment Tribunal fees ruling mean for employees?'