Today, the Supreme Court has unanimously ruled that the current Employment Tribunal fee regime is unlawful. Our employment law experts explain what this could mean for you.
These fees have been in place since 2013 – and Unison (the trade union who challenged the fee regime) have been fighting the fees since their inception – claiming that they create an unlawful barrier to access to justice for individuals and are discriminatory towards women. In response to Unison’s challenges, the Lord Chancellor had said that, if the fees were found to be unlawful, all fees paid would be reimbursed. In line with that promise, the Government is now required to take steps to repay any fees paid to date – both to claimants and any employers ordered to pay fees. Reports say this repayment figure could total £32 million.
What does this mean for those who’ve been involved in, or are currently in the process of, an Employment Tribunal or Employment Appeal Tribunal?
While it is too soon to know exactly what the process for reimbursement will be, this ruling means that everyone who has paid a fee for an Employment Tribunal or Employment Appeal Tribunal will be reimbursed.
Processing this huge number of reimbursements is likely to be a lengthy task – and could take years. The Government may introduce a claims system or issue guidelines as to how to manage reimbursements. But, if you’ve been involved in an Employment Tribunal since 2013, there are some proactive steps you can take to start the ball rolling.
- Check what fees you have paid, these should be recorded in your Employment Tribunal documents – for example the fee receipt from the tribunal confirming payment
- Find out whether your employer was ordered to pay your fees – if so, they’ll be entitled to the reimbursement, rather than you
- Write to the Tribunal with your evidence, and what you’re looking to claim.
The short term consequences of this ruling mean that, as of today, fees are no longer payable for any Employment Tribunal claims or appeals. So, if you’re currently involved in one, you won’t have to pay anything further – and you should ask about a reimbursement (with the evidence above) of any fees already paid as soon as possible.
What does this mean for those unlawfully prevented from making a claim?
It will be interesting to see how the Employment Tribunal responds to out of time claims now submitted by those who were prevented from bringing an Employment Tribunal claim or appealing an Employment Tribunal decision because they could not afford the fees. The strict limitation periods applicable to Employment Tribunal claims will still apply and there are limited circumstances in which extensions are granted. A claimant would therefore need to successfully argue that it was 'not reasonably practicable' for their complaint to be presented before the deadline because of the unlawful fee regime or, in the case of discrimination claims, that it would be 'just and equitable' to extend the time limit. The Employment Tribunal will take a case by case approach, reviewing each late claim on its on facts and merits. However, it anticipated that a strict approach will be adopted to avoid opening the flood gates or setting a precedent for late claims in the future.
Is this really the end of Employment Tribunal fees?
It’s unlikely that this complete ‘freeze’ on fees will be a long term solution. We expect the Government to introduce a new system, that is lawful. Presumably, this will involve lower fees – that won’t create a barrier to justice for anyone.
Fees for those bringing employment tribunal claims have been ruled unlawful, and the government will now have to repay up to £32m to claimants. The government introduced fees of up to £1,200 in 2013 to reduce the number of malicious and weak cases, but that led to a 79% reduction over three years. Trade union Unison argued the fees prevented workers accessing justice. The Ministry of Justice said the government would take immediate steps to stop charging and refund payments. The Supreme Court ruled the government was acting unlawfully and unconstitutionally when it introduced the fees.