The Supreme Court has unanimously ruled that employment tribunal fees are unlawful, allowing trade union UNISON’s appeal in a ground-breaking decision requiring the government to stop charging the fees.
Today’s ruling found the fees unlawful under both domestic and EU law because they had the effect of preventing access to justice. The Supreme Court stated that therefore the fees must be quashed.
The Supreme Court also ruled that the fees were ‘indirectly discriminatory’ under the Equality Act 2010, because a higher proportion of women pursue the more expensive type B claims and thus paid more in fees.
Lords including Neuberger, Reed, Lady Hale, Mance, Kerr, Wilson and Hughes unanimously agreed the judgment, following a two-day March hearing.
As a result of the decision, the government should also repay claimants more than £27m in past fees, according to UNISON.
UNISON first issued the long-running claim in 2013 on the basis that employment tribunal fees prevented those on low income and those who faced discrimination from accessing justice, but judgments from the High Court in 2013 and the Court of Appeal in 2015 both ruled in favour of the government.
In July 2013, the government introduced fees for any claimants seeking to file and pursue a claim in the employment tribunals, before which it was free to do so. Claims were classified as type A or type B based on how quickly the claim would take to be resolved. For a single claimant, simply filing type A claims required £390 in fees while type B claims charged £1200. Further employment tribunal fees were charged to claimants during the claim.
UNISON was represented by Dinah Rose QC and Iain Steele of Blackstone Chambers and Karon Monaghan QC and Mathew Purchase of Matrix Chambers, who were instructed by UNISON’s in-house legal team.
For the government, the Lord Chancellor was represented by David Barr QC of Temple Garden Chambers and Victoria Wakefield of Brick Court Chambers, instructed by the government legal department.
The Law Society of England and Wales president Joe Egan said in a statement the decision was ‘a triumph for access to justice, and a resounding blow against attempts to treat justice as a commodity rather than the right it is.’ It argued ‘against the hike in tribunal fees before it was implemented and – like so many others – warned that they would deny people the chance to uphold their basic rights at work. Today the Supreme Court has vindicated that view, and restored access to justice for those mistreated in the workplace,’ Egan added.
The Law Society had highlighted the ‘massive drop in cases coming to the tribunal in the wake of the fees being introduced’ and that ‘at least 14,000 people every year are unable to afford to go to the tribunal to resolve their claims, as well as tens of thousands of missing cases.’
The Bar Council said that the decision is ‘welcome to all who believe in the fundamental importance of the rule of law.’
Charles Russell Speechlys employment partner Emma Bartlett told Legal Business the ruling was ‘ground-breaking’ and that ‘it is going to open the floodgates to claims that have been previously left in the basement.’ Bartlett also argued that the introduction of fees and the resulting prevention of access to justice has meant that case law progression has been ‘stilted’ since 2013.
Kingsley Napley’s head of employment law Richard Fox agreed that ‘it has taken far too long to correct what was always an obvious injustice’. The fees had ‘cut a swathe through the majority of claims with one fell swoop, making them disappear overnight.’
Chris Holme, employment partner at Clyde & Co, said that fees ‘must now fall away’ and that ‘it is likely that the government will consider imposing a new fees regime, but until then new fees cannot be imposed.’
According to Trowers & Hamlins employment partner Emma Burrows, there could be a sharp increase in claims following the decision: ‘The employment tribunals are already under strain following a reduction in judicial resources. As claims go back up, this will need to be addressed by the government.’
In February 2016, reports revealed that 86 courts across England and Wales, including tribunals, would be sold in order to raise funds for judicial modernisation programmes. Around 140 courts were shut across England and Wales in a 2011 review.