A Supreme Court ruling has abolished the government’s right to impose fees for employment tribunals. The ruling marks the end of a three and a half year legal battle by Unison to do away with tribunal fees and enable any employee to bring a tribunal claim, regardless of their financial position.
Tribunal fees were introduced in July 2013, meaning anyone who wanted to bring their employer to tribunal would have to pay costs of up to £1,200, which Unison said meant some companies were able to escape punishment because people didn’t have the money to pursue a claim. The government launched a consultation to review tribunal fees earlier this year. This looked at whether or not the additional cost had deterred people with genuine claims. The Ministry of Justice is currently considering the feedback from the consultation.
Enrique Garcia is an employment law consultant with the ELAS Group. He says: “The decision of the Supreme Court to strike down the tribunal fees regime is sending a shockwave through the employment law establishment. It is not clear yet whether the requirement for fees will continue while transitional arrangements are made, or that they cease with immediate effect. What the fees regime is replaced with is up for debate. It may be some form of system whereby the cost of lodging a claim will be lower, perhaps more in line with small claim fees in the County Court. However, it is difficult to see where the Government will find the legislative time for this when they have more important issues to contend with. Employers’ who have become acclimatised to managing staff with only a low risk of litigation, will have to immediately re-assess their HR and employment law support. They should ensure it includes full, guidance, support and representation should they be taken to tribunal.”
“The Government may reintroduce fees at some point in the future but, if this was to happen, they would need to do it in a way that does not restrict access to justice e.g. lower fees and/or sliding scales dependent on the value or complexity of a case etc. The Government could also introduce primary legislation so that the courts would not be able to quash them however this is highly unlikely given the scathing comments given in the judgment regarding access to justice. They are also unlikely to rely on the DUP to force this one through Parliament as the DUP are from Northern Ireland, which has no fees for tribunal claims. The Government is also likely to be a bit pre-occupied with other matters to consider primary legislation
“I would expect to see a 4-5 fold increase in claims following this ruling. Prior to the introduction of fees in 2013, there were around 5,000 tribunal claims being lodged each month. After the introduction of fees, this fell to around 1,500 claims a month. We can safely expect this to go back up again so employers should be prepared.
“Strategic approaches will have to change e.g. taking certain approaches relying on tribunal fees as a deterrent to an employee bringing claims – this is now more of risky. We would always recommend that employers are careful to treat employees lawfully in order to avoid claims in the first place.”