For the past four years, to issue an employment tribunal claim against their employer employees had to pay a fee: £160 or £250 depending on the type of claim. And then to obtain a hearing, they had to pay another fee, £230 or £950.

In October 2013 UNISON, the trade union, commenced judicial review proceedings against that fees system. The High Court refused UNISON’s challenge twice, and the Court of Appeal denied their appeal.

The Supreme Court has today, 26 July 2017, handed down its judgment in favour of UNISON. Relying to an extent on the government’s January 2017 review into the fees, the Supreme Court held that tribunal fees have prevented access to justice for some, and that the higher costs for discrimination claims may be discriminatory. For these reasons, the fees regime has been held unlawful and has been abolished with immediate effect. From today, throughout the UK, potential claimants will not have to pay a fee to lodge a claim.

We do not yet know all the ramifications of this judgment, but here are a few of the principal points:

  1. For employers, the risk of facing claims has increased, as has the risk of a claimant proceeding to a hearing rather than settling.
  2. Note that Acas early conciliation, which has been obligatory since May 2014, remains in place – so for most employment tribunal claims to be valid, the claimant must have first obtained an early conciliation certificate.
  3. The Lord Chancellor’s Department has already agreed to reimburse all past fee payments.
  4. Employers may have paid the fee – either having been ordered to having lost a claim, or having agreed to in a settlement agreement. This will raise problems, of both a theoretical and practical nature. We’ll endeavour to keep you updated on that issue.
  5. Employers may also have to worry about past disputes coming back to life. It probably follows from the judgment that if a claim was struck out for non-payment of the fees, the employment tribunal should be prepared to resuscitate that claim. There may also be scope for employees or former employees issuing claims that on the face of it are out of time, as they’ll ask for time to be extended. Employment tribunals extend time for unfair dismissal claims if it was not reasonably practicable to bring the claim in time; for discrimination claims, tribunals apply the lower hurdle of whether it would be just and equitable to extend time. It seems to follow from the court’s reasoning that for some claims, those tests are passed. We’ll also endeavour to let you know as we learn more about these potential effects.
  6. This doesn’t mean we’ve seen the end of fees at the employment tribunal – the Supreme Court said that for the fees to be lawful, they must be set at a level that everyone can afford. Assuming the government hasn’t changed its underlying position on the fees, one might expect it to draw up an amended regime with lower fees (more in line with those in the county courts) and addressing the discriminatory impact of higher fees for discrimination cases.

Finally, this also demonstrates the importance that the Supreme Court places on access to justice, and that it is prepared to make controversial decisions in support of this principal.

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