The Supreme Court ruled yesterday in the case of R (Unison) v Lord Chancellor that the current regime of charging of fees for bringing a claim in the Employment Tribunal is unlawful on the basis that the fees are prohibitively high and prevent access to justice.
They held that the aim of introducing fees (to incentivise earlier settlement and discourage weak claims) was a legitimate one but the Government must not set fees at a level that risked preventing access to justice – if there must be fees, they must be at a level everyone could afford.
Employment Tribunal fees of up to £1,200 per claim were introduced in July 2013 and have led to around a 70% drop in the number of claims brought per year.
The Supreme Court’s decision that Employment Tribunal fees are unlawful means that the Government will now have to pay back millions of pounds in fees.
It is unlikely the Government will do away with fees entirely, although they may reduce the fees to a lower level, and perhaps require the employer to contribute to the Claimant’s fees during the application process – we await further details.
In the meantime, the current fees regime will not disappear overnight - for a start the online application form will have to be reprogrammed. Tribunals are already refusing to take any fees for those applications submitted in person to the Employment Tribunals designated to accept paper forms.
For employees hoping to receive a fee refund, the reimbursing process may take some time. Frequently, in successful cases, the Respondent will have been ordered to pay back the Claimant’s fees as part of the Tribunal decision. This will mean the Tribunals have to carry out a manual assessment of the decided cases to see which require fees to be returned – not likely to be a quick process.
Prospective claimants who have been dissuaded from bringing claims over the past few years because of the fees, may be able to seek permission to bring their claims “out of time” on the basis of this ruling.
What does this mean for employers?
Employers should expect an increase in the number of claims being brought in the immediate future, with perhaps some older disputes “returning to haunt” them.
For information on manager training courses (for example our Essential Employment Law for Managers course which highlights core people management issues), please contact our Employment and HR Training Academy on [email protected].
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