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The Supreme Court has today unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced fees in July 2013. This means the government will now have to repay as much as £32million to claimants.
Fees ranged between £390 and £1,200 to get a case heard at a hearing with claims such as discrimination costing more for claimants due to the complexity and time hearings took. The introduction of the fees led to an approximate 70% reduction in claims.
In the main judgment, the Court noted a contrast between the level of fees in an employment tribunal and the small claims court (where it is much cheaper to bring a claim for a small sum of money). Lord Reed emphasised the importance of the rule of law and relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved.
It was the Trade union Unison that argued fees prevented workers getting access to justice and were discriminatory towards women and other groups of workers. Following the decision, Unison general secretary Dave Prentis said, "It’s a major victory for employees everywhere."
The Supreme Court also found that not only were fees indirectly discriminatory to women because a higher proportion of women would bring discrimination cases, but it was also indirectly discriminatory to charge higher fees for type 'B' claims (which include discrimination claims) than type 'A' claims (which are less complex claims such as unlawful deduction of wages).
In terms of what happens next following this landmark decision, it is unlikely fees will be abolished entirely. The government will most likely issue a consultation paper and then bring in a lower level fees regime. Either way, the Employment Tribunals Service will have to give immediate thought to rewriting the tribunal rules, as well as reprogramming the online claim form system. It may also result in prospective claimants from the last four years, who argue they did not issue a claim because of the fees, to now try and make a claim saying it was not reasonably practicable for them to do so and therefore the time limits should be extended.
All in all, this ruling is a massive shake up of the employment tribunal system and it will be interesting to see how the government and the employment tribunal service respond.
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