R (Unison) v Lord Chancellor: the fall of Employment Tribunal fees

R (Unison) v Lord Chancellor: the fall of Employment Tribunal fees

In the beginning was the word and the word was free. From the very early days when Industrial Tribunals were first established in the 1970s, it was free to bring your claim.

For a long time, of course, it actually cost you a stamp because you had to post it to the relevant local Employment Tribunal office unless you could take it in in person.

Then the internet arrived and you could lodge your claim online without having to trouble the Royal Mail.

It was truly free and—to all intents and purposes—consequence free in terms of cost implications.

Then in July 2013 the government introduced Employment Tribunal fees.

The 2013 fee regime

Different types of claims were divided into two categories, Type A and Type B and there were two sorts of fee.

There was an issue fee to bring your claim in the first place and secondly a hearing fee to have your day in tribunal.

The fees were surprisingly high particularly when compared to fees in the County Court.

To bring an unfair dismissal or discrimination claim cost a total of £1200, which you were not guaranteed to get back even if you won.

Or if your former employer owed you £70 holiday pay it cost you £390 to pursue them.

Overnight the number of claims being brought dropped off a cliff and fell by something between 70% and 80%.

The government continued to maintain that access to justice had not been affected but clearly that was unsustainable.

Furthermore, the proposition that what was now being avoided were spurious claims—a suggestion made in some quarters—did not accord with the experience that practitioners had of the claims that were brought.

The trade union Unison brought a Judicial Review case to challenge the fee regime and it is fair to say that in both the High Court and the Court of Appeal it appeared to make little headway.

All of that changed on 26th of July this year when the Supreme Court handed down an exceptionally damning judgement.

The 2017 Supreme Court judgement

The judgement said that the 2013 Order that introduced fees was unlawful for various reasons.

It prevented access to justice and stopped people enforcing rights granted by Parliament.

The Order was also unlawful in that it interfered with, and imposed limitations on, the ability to enforce EU rights. Furthermore it was discriminatory.

In forming these views the Supreme Court noted that an ability to bring Employment Tribunal claims was important for society as a whole and not just the individuals concerned.

It is fair to say the decision caused a fairly seismic shock in the world of employment law on that day.

Once the dust had settled everybody immediately began to consider the implications for the future.

What now?

Firstly, it became clear that there would be no more fees moving forward at least in the short-term.

At this point the Employment Tribunal Service had to urgently change their online system to do away with the necessity for a fee to be paid.

It may be that the government introduces a new fee regime in the future. But it will be at a much lower level (and may apparently involve a fee for the employer when lodging a Response). Any new fee arrangements would not have retrospective effect.

Secondly, it was clear from the Judgement that every fee paid in the last four years would have to be refunded.

How that is going to work is still not entirely clear, and there will be cases where the employer has in effect already reimbursed the Claimant and on the face of it, it should be the Respondent getting some money back.

Thirdly, there was then the interesting issue of all the claims that might have, or could have, been brought but had not been because of the fees involved. Some of those cases would of course be almost four years old.

On that basis they were manifestly out of time but an Employment Tribunal can of course allow claims in ‘out of time’ in certain circumstances. Were we suddenly going to see four years of claims brought in a matter of weeks?

What this means for you

It has only been three months since the decision and the precise implications remain to be seen.

But in very broad terms it is likely to mean more claims brought or at least more claims threatened.

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