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The Supreme Court has 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 discrimination cases costing more for claimants due to the complexity and time hearings took. The introduction led to a 70% reduction in claims.
In the main judgment, the Court noted a contrast between the level of fees in the 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 the fees prevented workers getting access to justice and were discriminatory toward 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.
Comment
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
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