Breaking news: Tribunal Fees in the Supreme Court
The Supreme Court has allowed the appeal by Unison against the
legality of the current system of employment tribunal fees, holding
that the fees regime introduced in 2013 is unlawful and prevents
access to justice.
The consequences of the judgment are that with immediate effect
fees are no longer payable for claims before the ET or appeals to
the EAT and all fees which were paid in the past must be
The conclusions included a finding that the Fees Order did
effectively prevent access to justice. The evidence showed that the
fees were not set at a level that everyone could afford. This
included: the sharp and sustained drop in the number of claims; the
estimate in the recent Review that 10% of claimants did not bring
proceedings because they could not afford the fees; and the
hypothetical examples presented in evidence by Unison, of how fees
impacted on claimants in low to middle incomes. The existence of
the exceptional power of remission, which was exercised only about
51 times from July 2015 until December 2016, was no answer to this
picture: the problem was systemic.
A number of other factors reinforced this conclusion. The fees
were set at a level which rendered it futile or irrational to bring
smaller claims. For example, no sensible person would pay a fee of
£390 to bring a claim of £500 unless he was virtually certain to
succeed, that he would be reimbursed his fees and that the award
would be satisfied in full. But success can rarely be guaranteed,
and only half of successful claimants receive payment in full.
Little wonder that the statistics show that fees deter especially
claims for low sums.
This ruling is likely to have major implications for the legal
system, government as well as employers and workers across all
sectors and is extremely likely to result in an increase in the
numbers of employment tribunal claims brought.
We also understand from reliable sources that employment
tribunals are now refusing to take fee payments when hard copies of
ET1s are presented in person at one of the tribunals which is
nominated to accept physical ET1s and although the online ET1 form
still requires payment of the fee, this will be updated as soon as
Posted on: 26/07/2017
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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