Jul 2017
Author: Emily Kidd
What are Employment Tribunals?
Most UK employment rights are enforceable through the Employment Tribunals. Employment Tribunals were originally set up so that the layperson could bring a claim in an informal setting which did not require them to have legal representation. Any legal costs were usually borne by each of the parties, unlike the civil courts where the losing party was usually ordered to pay both parties’ costs.
In certain circumstances, an appeal can also be made to the Employment Appeal Tribunal. Until 2013, a claimant could bring and pursue proceedings in an employment tribunal and appeal to the Employment Appeal Tribunal without paying any fees. The idea behind the introduction of fees was to deter unmeritorious claims and to encourage earlier settlement.
Tribunal Fees
The Fees Order of 2013 brought in issue fees which were to be paid when a claim form was submitted and a hearing fee which was payable prior to the hearing of the claim. The amounts depend on whether the claim is brought by a single claimant or a group, and what type of claim it is. For a single claimant, the fees total £390 for a less complex claim and £1200 complex cases likely to have longer hearings. There are exceptions where a claimant can get a remission of fees, the amount of remission is dependent on the family income and the number of children they have.
As a result of the fees, tribunal claims have dropped by 79% over the last three years.
UNISON’s argument
The trade union, UNISON, argued that the making of the Fees Order was not lawful because the fees interfere unjustifiably with the right of access to justice under both the common law and EU law, go against the purpose of Parliament granting employment rights, and discriminate unlawfully against women and other protected minorities.
Supreme Court unanimous
The Supreme Court has decided unanimously to allow the appeal because the fees order has the effect of preventing access to justice and is therefore unlawful. It was also decided that the Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for discrimination claims put women at a particular disadvantage, because a higher proportion of women bring discrimination claims. The charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order.
What next?
The government has undertaken to refund tribunal fees which will be an administrative nightmare as some will have been paid by insurance companies, trade unions and employers.
Already, Tribunals are refusing to take payment of fees on claims submitted in person but will amend the online system (which still requires payment) as soon as possible.
Tribunal claims over the coming months may include claims from claimants that argue they could not afford the fees and therefore missed the deadline to bring their claim but now seek to have their claim heard after the deadline.
Please get in touch with a member of our Employment team if you have any queries on any of the above.
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