Earlier today, the Supreme Court has allowed the appeal by Unison, holding that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013, which introduced the requirement for employees to to pay a fee to bring an employment tribunal claim and which led to a 70% reduction in claims is unlawful and will be quashed.
In the main judgment, the Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court, where it is very much cheaper to bring a claim for a small sum of money. Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. He relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved.
The Supreme Court held that the Fees Order does effectively prevent access to justice. It also held that the Fees Order imposed unjustified limitations on the ability to enforce EU rights (i.e. those claims based on EU law), and was thus unlawful under EU law.
What Will Happen Next
First, it is unlikely the fees regime will be abolished entirely. It is probable that the UK Government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its response to an employment tribunal claim.
Second, the Employment Tribunals Service has its work cut out. Thought will need to be given to an immediate rewriting of the tribunal rules, and a reprogramming of the online employment tribunal claim form system.
Third, the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor's Department - and the Lord Chancellor has agreed to do so. This is easier said than done as many successful claims will have had fees ordered to be paid by the employer, and there will probably need to be a manual trawl of all decided cases.
Fourth, what about all those people who chose not to bring a claim because of the fees? It is unclear as to whether ex-employees will be allowed to use the argument that it was not reasonably practicable to bring a claim when they were significantly impeded from doing so by an unlawful fees regime and as such if it is just and equitable to extend time for bringing a claim.
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