The Supreme Court has ruled that the order introducing fees for claimants in employment tribunal proceedings was unlawful. The Government will now be obliged to refund all fees paid since the order came into effect in July 2013.
This week’s decision has surprised many, since the claimant union Unison was unsuccessful in both the High Court and the Court of Appeal. But it is this latest decision that matters.
Lord Reed, delivering the leading judgment, said:
“In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met.”
Earlier in the decision, he made it clear that the lawfulness of the fees had to be judged against the constitutional right of access to the courts which is inherent in the rule of law. This is part of the UK’s common law, though the ruling also establishes that the fees regime also infringed the principle of effectiveness under EU law.
It would be possible for the Government to come up with a replacement fees regime that would not be unlawful, but this robust decision will make that difficult. It follows that for the foreseeable future fees cannot be charged in our employment tribunals. The Government has now amended its ET claims portal to make this clear. In due course revisions to the ET forms and rules of procedure will need to be made to reflect the ruling.
It seems certain that the volume of employment tribunal claims will now rise, though unclear whether they will ever return to pre-2013 levels. It is also likely that claimants who can show that they were deterred by the level of fees may submit late claims, combined with an application to extend the normal time limit.