In the judgment of Unison v Lord Chancellor, the Supreme Court has unanimously allowed the appeal and ruled that Tribunal fees are “unlawful under both domestic and EU law as it prevents access to justice.”
Until the introduction of the Employment tribunal Fees Order 2013, claims could be raised in the Employment Tribunal without the burden of paying fees. Fees were then introduced ranging from £390 to £1,200 to raise a claim and have it heard, depending on the type of claim (£390 for more straightforward claims (“Type A”), for example pay disputes, and £1,200 for any cases involving unfair dismissal and/or discrimination (“Type B”)).
The stated aims of The Fee Order were to transfer the cost burden from taxpayers to the users of the services, deter unmeritorious claims and encourage earlier settlement where possible. This resulted in an over 70% reduction of claims raised in the Employment Tribunal over 3 years.
However, the trade union Unison argued that the Fee Order was not a “lawful exercise of the Lord Chancellor’s statutory powers” as it would “interfere unjustifiably with the right of access to justice” and “discriminate unlawfully against women and other protected groups.”
The Supreme Court has unanimously upheld Unison’s appeal on the following grounds:
- The Fee Order has the effect of preventing access to justice which must be held to be an inherent rule of law;
- While in the civil courts, fees may be related to the value of the claim, the Employment Tribunal and Appeal Tribunal bear no direct relation to the amount sought by the claimant and therefore may deter claims for modest amounts or non-monetary remedies;
- The Fee Order is indirectly discriminatory under the Equality Act 2010 as higher fees for “Type B” claims including equal pay, unfair dismissal and discrimination put women at a particular disadvantage, due to a higher proportion of women bringing “Type B” claims than “Type A claims. ; and
- The introduction of higher fees was not a “proportionate means of achieving a legitimate aim”.
General Secretary Dave Prentis of Unison said: “The Government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.”
We will be keeping a close eye on the implications of this Judgment as we wait to see exactly what this will mean for thousands of Claimants who have paid fees since 2013. However, it has been reported that the Government will now have to repay £32m to those who have had to pay these fees while pursuing claims over the past 3 years.
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