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 reimbursed.

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 logistics permit.

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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