Supreme Court Rules ET Fees Unlawful

The Magna Carta, one of Britain’s oldest pieces of constitutional legislation, states that, ‘To no one will we sell, to no one deny or delay right or justice.’

In July 2013, as part of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, Tribunal Fees were introduced. The fees meant prospective Claimants would have to pay up £1,200 to bring a claim. The rationale behind this was to transfer some of the cost of running the Tribunal Service from the taxpayer to the service user.

Like many practitioners, PJH Law has been highly critical of the obvious barrier to justice that ET Fees created. Claims dropped by 75% in the 6 months after they were introduced. This drop continued and a TUC report in 2016 found that Unfair Dismissal claims were down 73%, Sex Discrimination claims down 71%, Race Discrimination claims down 58% and Disability Discrimination claims 52% .

Another motive of the fees was to deter frivolous and vexatious claims. However, in 2012, the win percentage for unfair dismissal cases was 10%. By 2016 the win percentage had fallen to 8%, suggesting the fees made no difference to the amount of claims that were made without merit.

Following a lengthy legal dispute that has gone through the High Court, Court of Appeal and now Supreme Court, Unison has successfully challenged the legality of the fees. The Supreme Court unanimously ruled that the fees were unlawful and the Government had been acting unconstitutionally by introducing them. It also held that the fees were indirectly discriminatory against women.

Lord Reed, whilst handing down judgment, stated that, ‘(the fees) have resulted in such a substantial and sustained fall in the number of claims being brought that it points to the conclusion that a significant number of people have found the fees unaffordable.’ Therefore, it held the fees broke both UK and EU law.

The Government will now also have to repay Claimant who paid the fee to lodge their claim, and any Employers who had to repay the Claimant’s fee when they lost the case. This is currently estimated to be £32m in fees over the 4 years they have been paid. Expect more on this issue over the following months.