Since July 2013, employees wanting to pursue a claim against their (former) employer have been forced to pay the Employment Tribunal fee. These fees could be as high as £1,200 depending on the nature of the claim. Broadly speaking ‘complex’ claims like unfair dismissal and discrimination attracted fees of £1,200 whereas ‘simpler’ claims like deduction for wages had lower fees.
One of the reasons given by the government for the introduction of fees was to reduce the amount of weak or malicious cases being made against employers.
Since the introduction of employment tribunal fees, there has been a 79% reduction in Employment Tribunal claims and this is thought to be due to claimants being unable to afford fees, especially those workers in lower paid jobs. Furthermore, since the likely compensation in some cases would be less than the level of the fees, litigation became uneconomic.
Some employees report that another problem that has been caused by the fees regime is that unscrupulous employers will make a decision knowing it to be unlawful, essentially saying to the affected employee ‘put up or shut up’.
In a landmark case brought by Unison – the UK’s largest Trade Union – it was argued that Employment Tribunal fees are unfair, unlawful, discriminatory and deny wronged employees access to justice. Unison lost their claim in the High Court and the Court of Appeal, but succeeded in an appeal prosecuted before the Supreme Court. In a judgment handed down last week, the Supreme Court justices agreed with the thrust of the arguments advanced by the Union and ruled that the fees were unlawful under both UK and EU law. Of particular note, Lady Hale – who is about to become the first female president of the Supreme Court – indicated that the fees indirectly discriminate against females.
As a result of this ruling, the government will now stop charging fees and will refund more than £27 million in fees originally paid by claimants pursuing claims in the period between 2013 and the date of the judgment.
Some interesting points are thrown up by the decision :-
What will happen to cases where the employee won and the employer was ordered to reimburse the Tribunal fees paid by the employee? Will long-suffering court staff be ordered to carry out an audit of every tribunal case file to ensure that Tribunal fees are paid to the right person/company?
What will happen where employees did not bring claims before the Employment Tribunal within the time limit (usually 3 months) – where the reason for not bringing the claim was a lack of available funds? Tribunals have power to allow claims to proceed out of time if it was not ‘reasonably practicable’ to bring the claim in time (unfair dismissal claims) or if it is ‘just and equitable’ to allow the claim to proceed notwithstanding the missed deadline (discrimination claims). It has to be at least arguable that the fees regime made it not reasonably practicable to bring a claim in time and/or just and equitable to allow the claim to proceed.
Does the judgment have wider effect upon court fees generally? Arguably any court fee payable before making a claim in the civil courts may prevent access to justice.
Is this the end of the road for Employment Tribunal fees? Might the government try to introduce some system of fees that operates in some way to avoid the problems engendered by the now defunct fees scheme?
Will there be a spike in Employment Tribunal claims going forward – particularly claims of a speculative nature? On the face of it, this seems likely. However, mandatory early conciliation before ACAS may ameliorate this (and in the writer’s experience early conciliation leads to a reasonable number of cases settling pre-issue).
Only time will answer these questions but it is clear that the decision is extremely good news for employees (and employment lawyers)! With early advice, of course, employers should be able to avoid the majority of mistakes likely to land them with an employment tribunal claim.