We look at the decision by the Supreme Court in R (on the application of Unison) v Lord Chancellor.

The Employment Tribunals and the Employment Appeal Tribunals Order 2013 introduced a fee that you had to pay before you could bring a claim to the Employment Tribunal. You’d have to pay further fees if your case went to a hearing.  

The fee was introduced to shift some of the cost of running the Employment Tribunals from the taxpayer to tribunal users. It was also used to encourage early settlements, and to deter employees from making claims without sufficient reason to do so. Before this, users of Employment Tribunals didn’t have to pay any fees.

There were two types of claims, with different fees.  You’d have to pay a smaller fee for low value, more straightforward, ‘Type A’ claims, and more for complex, higher value, ‘Type B’ claims.  

Unison, the public sector trade union, argued that the fee regime was unlawful. It restricted access to justice, interfered with employment rights legislation, it discriminated unlawfully against protected groups, particularly women.

Judgment

The Supreme Court held that the fees were in fact unlawful. They prevented access to justice, which is both a common law right, and a right under EU law. The evidence showed a sharp decline in the number of Employment Tribunal claims, especially low value ones. A significant percentage had notified Acas of their claims, but hadn’t lodged them at tribunal because they couldn’t afford to.

When justifying the fees as a necessary intrusion on the right of access to justice, the Court found that, although the aims of introducing fees were legitimate, the fees were not the least intrusive means of achieving those aims. There was also no evidence to suggest that the fees were only deterring unmeritorious claims. The higher fees for ‘Type B’ claims could just as easily deter claimants with credible claims, and there was no correlation between the higher fees and the merits of any claim.

The Court also found that the fees indirectly discriminated against people with a protected characteristic, especially women. Statistics show that more women than men bring ‘Type B’ claims.

Employers should be aware that the decision, and the resulting withdrawal by the Government of the fees, will result in a rise in the number of claims now being brought before the tribunal. There is also a possibility of out of time claims being brought against employers on the basis that claimants were unable or unwilling to bring a claim earlier.

Please see here to read our latest blog on tribunal fees.

For more information, please contact Nia Cooper.

To read the rest of this month's newsbytes, please see here