As you may have seen in the news, in judicial review proceedings brought by Unison (R (on the application of Unison) v Lord Chancellor), the Supreme Court has declared that employment tribunal and EAT fees (which led to a 70% reduction in claims) are unlawful under both domestic and EU Law on the basis that they prevent access to justice.
The effect of this momentous decision is that all fees paid since 29 July 2013 must be reimbursed by the Government, and fees are no longer payable for future claims.
Supreme Court Ruling
In an expansive judgement, the court focused on the common law right of access to justice, which can be traced back to the Magna Carta. The court rejected the Government’s assumption that the provision of services by employment tribunals was of value only to litigants and provided no broader social benefit. Individuals need to know that they can enforce their rights if they have to, and businesses need to know that there is likely to be a remedy against them if they fail to meet their obligations. Tribunal claims enable legislation to have the deterrent effect that Parliament intended, as well as providing authoritative guidance as to the meaning and application of the relevant legislation and underpinning alternative methods of dispute resolution.
The court accepted that the objectives behind the fees regime (transferring the cost burden to users of the tribunal system, incentivising earlier settlements and discouraging weak or vexatious claims) were legitimate. However, the Lord Chancellor could not impose whatever fees he chose in order to achieve these purposes, and the fall in the number of tribunal claims since 2013 was so sharp, so substantial and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable. Where households on low to middle incomes could afford fees only by sacrificing the ordinary and reasonable expenditure for substantial periods of time, the fees could not be regarded as affordable.
The stated objective of the fees regime did not justify the intrusion on access to justice which the court had identified. It was clear that the fees had been set at too high a level; it had not been shown that lower fees, or a more generous remission system, would have been any less effective in meeting the objective of transferring the cost burden to users.
The Government has accepted the court’s ruling, and is putting in place systems for reimbursing all fees paid to date.
How Nelsons Can Help
We anticipate that there will be an increase in the number of claims being lodged with Employment Tribunals as a result of this decision. If you have not considered our Emplus package with insurance cover to protect you in the event of such a claim, please contact our specialist Employment Law team on 0800 0241 976 or contact us via our online form.