In a monumental decision handed down today, the Supreme Court has found that the current Employment Tribunal fees regime (Fees Regime) is unlawful. The immediate consequence is that the Fees Regime has been quashed. This means that:
- fees for all existing claims in the Employment Tribunal and the Employment Appeal Tribunal cease to be payable as of today, and
- all past fees paid must now be reimbursed.
This judgment is the result of a challenge to the Fees Regime by Unison, supported by the Equality and Human Rights Commission. The Supreme Court Justices unanimously agreed that the Fees Regime prevents access to justice and that its objectives, namely to contribute towards tribunal costs, deter unmeritorious claims and encourage settlement through ACAS, were not being fulfilled. The Court considered evidence that showed the sharp drop in the number of claims brought since fees were introduced, the low level of most Employment Tribunal awards, and the poor record of enforcement of awards and found that the Fees Regime inhibited people from making claims.
There has been strong and sustained criticism of the Fees Regime since it was introduced in 2013 and recently both the Ministry of Justice consultation paper ‘Review of the introduction of fees in the Employment Tribunals’ released in January 2017, and the Taylor Review of Modern Employment Practices, released in July 2017, suggested areas for reform. However, this decision goes further than many expected.
It is unclear whether there is scope for the re-introduction of a significantly reformed Fees Regime however without fees, we can expect to see an upturn in employment claims. The Court’s finding may also open the door for claimants to try and bring claims that are now out of time on the basis that the (now) unlawful Fees Regime made it not reasonably practicable to bring the claims before the regime was outlawed. Fun and games are in store, but access to and justice has been served.