Newsflash: Employment Tribunal fees abolished

The Supreme Court has held the current fee regime for employment tribunal fees to be unlawful and prevents access to justice.

Lord Reed handing down the court’s ruling noted a contrast between the level of fees in the tribunal, and the small claims court. He emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister.  He relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved.  He concluded the that fees “have resulted in such a substantial and sustained fall in the number of claims being brought that it points to the conclusion that a significant number of people have found the fees unaffordable.”

Baroness Hale gave a judgment on the indirect discrimination aspects of the fees regime.  She held that it was indirectly discriminatory to charge higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims and found the fee regime to be contrary to the Equality Act 2010 as it disproportionately affected women.

The Ministry of Justice said it would take “immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid”. This means the government will have to refund millions of pounds to the thousands of people charged for taking claims to tribunals since the introduction of the fee regime. We know that already employment tribunals are not collecting fees with hard copy claims but the online application and linked fees process will still need to be altered; as will the employment tribunal rules of procedure.

We have yet to see how the refunds will be applied, particularly where fees have been paid by employers as part of any tribunal award.

The wider ramifications will follow in the coming months. We have already seen commentators questioning whether, and if so, what form of new fees regime may follow. There is also the question of those who could not afford the fees – will they seek to argue that the Tribunal should accept a claim now and out of time?