In a landmark ruling, the Supreme Court has found that the current system of employment tribunal fees prevents access to justice and is unlawful.
Employment tribunal fees were introduced in July 2013 with the aim of transferring the costs of running the employment tribunal system to users of the service, encouraging early settlement of disputes and discouraging weak or vexatious claims.
Depending on the type of claim, employees have been required to pay up to £1,200 to fight their case in tribunal. Although a fee remission scheme is available, for many the financial rewards available from winning an employment tribunal case simply didn’t justify the cash injection required to cover the employment tribunal fees.
Since the introduction of fees, the number of employment claims have dropped by around 70%.
What the decision means
Justice Minister Dominic Raab has confirmed that the tribunal service will stop charging fees with immediate effect, and steps will be taken to refund all those who have paid fees since the introduction of the scheme – estimated to be over £27million.
We’ll therefore return to the system pre-July 2013, whereby any employee who feels they’ve been treated illegally or unfairly will now be able to bring a claim against their employer without the financial burden of paying a fee.
Does this mean a future without fees?
For now, yes. But it’s important to note that the Supreme Court acknowledged that the reasons for introducing tribunal fees were and continue to be legitimate. The issue in this case was the level of fees imposed.
For fees to be lawful, they must be set at a level that everyone can afford, taking into account the remission scheme available. The Supreme Court did not accept that this was the case under the current scheme.
If the Government remains committed to the principle of fees, they could introduce a new fee scheme which is structured in such a way that it could not be viewed as preventing access to justice.
If that’s the Government’s intention, it’s likely that they’d want to enter a period of consultation beforehand to ensure that they take all possible measures to ensure the revised scheme doesn’t fall foul of this ruling.
As things stand, employees who were previously priced out of making a claim will now have the financial freedom to do so.
Gillian McAteer, Head of Employment Law Advice at Citation, commented: “This decision has caused alarm for employers who are concerned that the huge reduction in claims experienced after the introduction of fees will now be met with a corresponding increase in claims, at a time when there is already so much uncertainty for business owners surrounding the impact of Brexit”.
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