On 26 July 2017 the Supreme Court quashed the Employment Tribunal and Employment Appeal Tribunal fees held to act as a deterrent to claims for modest amounts or non-monetary remedies. These types of claims statistically form the majority brought in Employment Tribunal. Announcements will be made in due course regarding any recovery of fees paid since the Order of 2013.
History of fees: By virtue of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) which came into effect 29 July 2013, a claimant was burdened with having to pay a commencement fee and a trial fee: the amount was dependent upon what type of claim was pursued (and whether they were a single claimant or part of a group.
There has been a scheme of fee remission which was limited and dependent upon the claimant (and their partner) having a very low gross monthly income, unless “exceptional circumstances” exist, if that were the case then remission would be granted.
The case brought: UNISON’s proceedings were for a Judicial Review of the Fees Order. They argued that it did not represent a lawful exercise of the Lord Chancellor’s statutory powers because:
1. The right of access to justice under the common law and European Union law was unjustifiably interfered with;
2. The operation of Parliamentary legislation granting employment rights was frustrated; and
3. The Fees Order discriminated unlawfully against women and other protected groups.
They lost the case the High Court and Court of Appeal, but pursued an Appeal to the Supreme Court with the outcome that it was unanimously allowed.
Basis appeal allowed: The appeal was allowed on the basis the Fees Order is unlawful under domestic and European Union law because its effect is to prevent access to justice and as a consequence the Fees Order has been quashed.
Lord Reed gave the lead judgment on all issues except the discrimination element which was given by Lady Hale, who held that the Fees Order is indirectly discriminatory under the Equality Act 2010. The reason is that the higher fees for Type B claims put women at a particular disadvantage because a higher proportion of women bring Type B than Type A claims. The charging of higher fees was not justified in such circumstances.
Clearly, the outcome of this case, will have a major impact upon employment disputes from hereon in. There is also a question as to whether there can be challenges now brought in terms of claims out of time, that would likely have good prospects, had the Claimant in such cases been able to afford the fees. If you need any advice and assistance with any employment dispute we are able to help. In the meantime – WATCH THIS SPACE!