Landmark judgment on employment tribunal fees

In a landmark judgment, the Supreme Court has today ruled that the Employment Tribunal Fees Order, which implemented ET fees, is unlawful as it prevents access to justice.

Since 2013, when issuing a claim in the Employment Tribunal, claimants have either had to pay an issue fee of £160 /£250 (depending on the type of claim) or to make an application for remission failing which the claim would be struck out. A further hearing fee of £230 / £950 must also be paid just before the hearing.

Despite a 68% fall in the number of ET cases pursued since the introduction of fees by the Tory / Liberal Democrat Coalition government, the Tory government sought to maintain the fees arguing that there was no conclusive evidence that the drop in ET claims was due to fees.

The Supreme Court disagreed saying that the fall in the number of claims has been,

‘So sharp, so substantial and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable’.

In strong and critical language, the highest court in the land ruled against the government, highlighting cases of:

• Low income workers who cannot afford the fees;
• Low value claims that are disproportionate to run given the fees;
• Claimants who are unable to recover compensation awarded by Employment Tribunals but who are still required to pay the fees;
• Disputes where no monetary award can be recovered but where the fees must still be paid;
• Claimants who have suffered unlawful discrimination who unjustifiably have to pay higher fees.

The Supreme Court held that the government acted ultra vires by introducing the fees and in breach of EU law and the government is now faced with having to make refunds.

Asha Wije, Legal Officer of GMB Southern Region said,

“When the Coalition Government initially consulted about its proposal to introduce ET fees, trade unions, lawyers and many others up and down the country highlighted the points on which the government has now lost this case. This has been a monumental waste of time and resources and, as always with the Tory government, it’s the ordinary working person who has had to suffer in the meantime.”

Paul Maloney, Regional Secretary of GMB Southern Region, welcomed the Supreme Court ruling saying,

“Since the day they were introduced, ET fees have acted as a barrier to accessing justice for thousands of ordinary working people. The labour manifesto unequivocally stated that it would remove ET fees. It’s very sad that it’s come down to the courts having to force the Tory party to address the issue. This government is in a mess over Brexit and now it’s in a mess over ET fees.”

 We will be keeping an eye on developments following the Supreme Court’s judgment. Employment Tribunals will have to amend their processes for lodging and dealing with claims and we expect guidance to be issued in due course. If you have any queries in relation to your employment, please contact your GMB representative without delay.