Employment tribunal fees are unlawful. In a hugely significant decision, which has reinforced the rule of law and the constitutional right of access to the Courts, the Supreme Court has held that the Government did not have the power to introduce the fee regime.
The Court held that the fees effectively prevent access to justice under both the common law and EU law.
The Court considered that there was a real risk that the fee order would prevent people from having access to justice and the degree of intrusion went beyond what was justified. In making its the decision the Court took into account, among other things, that fees were not at a level everyone could afford, the fees system made it futile to bring small value claims and the Government had not produced any evidence as to why the fees had been set at the particular level.
The Court also held that the fees discriminate unlawfully against women and other protected groups. The Court determined that the higher fees payable for certain claims (such as for discrimination) were indirectly discriminatory against women and others with protected characteristics (such as age, race and disability). There was evidence that a higher proportion of women bring the claims requiring higher fees than bring the claims with lower fees. Charging the higher fees was not a proportionate means of achieving the aims of the fee system.
A victory for employees
There has been a lot of criticism of the fee system, and how it has deterred people from bringing claims. Earlier in the year a Government review had found that there had been a 70% drop in the number of cases taken to the employment tribunal since the introduction of fees back in 2013. In its review the Government accepted that fees had discouraged people from bringing claims but had not prevented them from doing so. Now the Government has been forced to accept that employees have been denied access to justice.
After the Court decision UNISON general secretary, David Prentis,stated:
“The Government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.”
The effect of the decision
The Government has stated that it will take immediate measures to stop charging employment tribunal fees, and has also agreed to refund fees to those who have paid out in the last few years.
It is widely expected that there will now be a sharp rise in employment tribunal claims being pursued.This will of course put a greater burden on employment tribunal resources.
I also suspect that there will be strong calls to ensure that appropriate safeguards are in place so that individuals are deterred from bringing vexatious claims.
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