The Supreme Court has today decided that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 is unlawful and will be quashed.
The Fees Order (under which fees of up to £1200 were payable) resulted in a 70% reduction in claims to the Employment Tribunal, and led to arguments that access to justice was being denied.
The Supreme Court has accepted those arguments both under domestic and EU law. The Court also concluded that the fees regime was discriminatory.
John Dalby, Director at Gregg Latchams Solicitors, commented: “This is a momentous decision with far reaching consequences. I suspect that the Government will seek to bring in a new fees regime after a proper consultation process and, if so, it is likely that fees will be at a much lower level than under the old regime.”
In the leading judgment Lord Reed emphasised the importance of the rule of law, that access to justice was a fundamental constitutional right and that Employment Tribunal cases are important for society as a whole, and not just the individuals involved.
The immediate effects of this judgment are:
- Fees are no longer payable when commencing tribunal claims or lodging an appeal to the Employment Appeal Tribunal;
- The fees which have been paid since the regime was introduced (estimated at £32 million) are repayable.
This repayment will be complicated as in many successful cases fees will have been ordered to be paid by employers to claimants. As yet, it is unclear whether the Tribunal Service will volunteer repayments or whether it will be necessary for claimants to apply. Justice Minister Dominic Raab has stated that the Government accepts the judgment and will comply with it.
Reflecting on the consequences of this judgment, John continued: “I anticipate that some of those people who chose not to bring a claim because of the fees payable will now seek to bring their claims even though they are outside the three month time limit for lodging tribunal claims. They may ask the tribunal to extend the time limit on the basis that it would be just and equitable to do so.”