The Supreme Court has today published its landmark decision in the long-running legal battle between the Government and UNISON regarding the legality of Employment Tribunal fees.

The Court has ruled that the current system effectively prevents access to justice, and is unlawful. The Ministry of Justice has said that it will take immediate steps to stop charging.

Fees for bringing a claim in the Employment Tribunal and Employment Appeal Tribunal were introduced in 2013, with claimants having to pay up to £1200 for taking a claim of unfair dismissal or discrimination to a hearing, and up to £390 for pursuing lower value claims such as unlawful deductions from wages. The introduction saw an immediate fall in the number of ET claims of more than 70%.

The Court’s key findings were:

  • The constitutional right of access to the courts is inherent in the rule of law.
  • Access to the courts is of value not only to the particular individuals involved, but to society as a whole, both in terms of establishing important principles of law which benefit society, and in providing an incentive to employers to uphold employment rights. The government did not take this into account.
  • There is no dispute that the purposes which underlay the introduction of fees are legitimate. Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. Measures that deter the bringing of frivolous and vexatious cases can also increase the efficiency of the justice system and overall access to justice.
  • However, the degree of intrusion on the right of access to justice must not be greater than is justified by the objectives which the measure is intended to serve. In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence before the court leads to the conclusion that that requirement is not met.

The fall in the number of claims has …been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable”.

  • Conciliation can be a valuable alternative in some circumstances, but the ability to obtain a fair settlement is itself dependent on the possibility that, in the absence of such a settlement, a claim will be presented to the ET.

Whilst it is likely that the government will consult on the introduction of a new system of fees in due course, set at lower levels and with a more comprehensive system of remission, for the foreseeable future at least it seems that there will be no fee to be paid for bringing any type of claim in the ET or EAT.

The government will also have to refund more than £27m to the thousands of people who have been charged for presenting claims since fees were introduced.

If you are dealing with a claim in the Employment Tribunal, or are concerned about one arising in the future, contact EML on 01942 727200. We have a specialist Employment Tribunal Representation team who can assist you at every stage of proceedings, and can also represent you in any dialogue with ACAS by way of Early Conciliation.  For HR and Employment Law advice which will reduce the risk of such claims arising in the future, contact any of our consultants on the same number.