Employment Tribunal Fees Scrapped – Tax on Justice Abolished
The Supreme Court’s recent ground breaking judgement that Employment Tribunal Fees are unlawful and an impediment to access to justice has reversed government policy which prevented employees from bringing claims when they had been treated unfairly.
Background
At the end of July 2013, the coalition government, led by David Cameron, introduced Employment Tribunal (ET) fees on the pretext of cutting the cost of running ET’s. They argued that this would reduce the number of malicious, or weak workplace claims, despite the fact that judges could already order deposits or strike out claims to deal with these types of cases.
Over the past four years, government statistics have shown that in some cases there has been a 79% decline in the number of cases lodged in the ET. Statistics used to bring this claim also showed that a further 10% of claimants were unable to continue with their claims due to the large hearing fee. This is not surprising, given that the cost of applying for a tribunal hearing has been £230 for cases where money is due to the employee and £950 for more complex claims such as discrimination and unfair dismissal claims.
This fee was in addition to the worker or employee, who may have also lost their job, having to fund their own legal costs as many Law Centres and CAB’s have now closed down. ET fees effectively acted as a deterrent that denied many claimants access to justice.
The role of UNISON
The lawfulness of tribunal fees was repeatedly challenged by UNISON in two Divisional Court hearings, as well as in the Court of Appeal. Despite losing, UNISON and their legal team continued to challenge the legality of ET fees.
This ground-breaking and unanimous judgement of all seven judges in the Supreme Court, led by Lord Reed, left no one in doubt that ET fees curtailed access to justice as a fundamental right, and that the level of fees were unaffordable to many, and an ‘unconstitutional’ obstruction to access to justice.
Lord Reed outlined the low level of most ET awards, the poor record of enforcement, and the dramatic decrease in the number of claims. In addition, fees had not made a significant contribution to tribunal costs, and had failed to deter unmeritorious claims.
Interestingly, despite the introduction of mandatory Early Conciliation, the proportion of cases which had settled through Acas had also not increased.
Lady Hale also found in UNISON’s favour that these fees disproportionately impacted on women, and could not be proportionately justified – rendering the government in breach of the Equality Act 2010. The largest drop in claims was a 79% decrease in women bringing sex discrimination claims. This was despite the increase in pregnancy and maternity discrimination, as shown in the research undertaken by the Equality and Human Rights Commission.
The result
The effect of this judgement was immediate, with fees being scrapped on the same day.
In accordance with an undertaking given by the Lord Chancellor, the government now have to reimburse fees already paid over the last four years. UNISON estimates that the government will be required to pay £30m worth of reimbursement fees to claimants dating back to July 2013.
However, the government has still not announced how it will reimburse claimants who had to pay unlawful employment tribunal fees, more than two months after the Supreme Court ruled against the fees.
Minister of State, Dominic Raab, has announced that those who could not afford to bring a claim when fees were in place will be able to reapply outside the normal limitation period. However, cases will be assessed on a case-by-case basis, meaning that they will still have to meet the usual test by showing that it was not ‘reasonably practicable’ to bring a claim at the time. Clearly they will have to show that they did not have sufficient financial resources at the time.
It is however heartening to hear that Employment Tribunals are now reinstating cases which were struck out for non-payment of fees.
The long-term consequence of this ruling is that the Supreme Court has given the strongest possible endorsement regarding the importance of our constitutional right of access to the courts as an essential element of the rule of law.
We can only hope that this will deter the government from imposing further barriers to justice so that people rights and access to justice are further eroded.
This ruling shows the important role unions play in protecting workers’ rights. Not only have UNISON’s own members benefited, but an important principle has been made which protects all workers’ employment rights, so that they can now access justice.
If you need any assistance making an Employment Tribunal claim or submitting your case for Acas Early Conciliation process, please contact our expert team of Employment Solicitors on 01273 609911, or email info@ms-solicitors.co.uk to find out more.
