Fee Circus - Employment Tribunal Fees Ruled Unlawful

Damien Burns, Employment Law Solicitor

Damien Burns, Employment Law Solicitor

In a judgment that is being viewed both as a surprise and blow to the government’s justice policy, the Supreme Court has ruled that the Employment Tribunal fees system is unlawful.

The fee system was introduced, despite much criticism, in 2013 by the then Lord Chancellor Chris Grayling and had an immediate impact upon the numbers of tribunal claims, with the Ministry of Justice Statistics showing a 66 per cent drop in the year following their introduction.

UNISON launched an action against them almost instantly relying on arguments that they prevented access to justice, limited the ability to enforce EU rights and that they amounted to indirect discrimination. While these claims made their way through the courts further pressure was placed on the government to revise at the very least, the level of fees with both the Law Society and the House of Commons Justice Committee concluding that the current levels harmed access to justice.

These pleas fell on deaf ears and the government in their own review* of fees this year concluded that, while it is clear that many people had chosen not to bring claims to the Employment Tribunals since their introduction, there was “nothing to suggest they have been prevented from doing so.” However, the Supreme Court, it would seem, took a different view concluding they were in fact inconsistent with access to justice and contrary to the Equality Act 2010 as they disproportionately affected women.

In response to the judgment the Ministry of Justice have stated they will take steps to stop charging fees in employment tribunals and look to put in place arrangements to refund those who have already paid. Unison have said that such refunds could have a value in excess of £27M.

*MOJ “Review of the introduction of fees in the Employment Tribunals” Jan 2017


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