07/08/2017

The landmark judgment, in which the Supreme Court on 26 July upheld an appeal by Unison and ruled that employment tribunal fees introduced in 2013 were unlawful, had a number of immediate effects, eg

• the government stopped collecting fees from tribunal claims
• the site for making online fee payments was suspended
• the government (presumably) started planning how best to reimburse fees worth around £27m that have been paid over the past 4 years

‘R (on the application of UNISON) v Lord Chancellor’ explains the Court’s ruling that the requirement for employees to pay £1,200 to pursue type B cases, such as unfair dismissal and discrimination, and £390 for type A claims, such as for unpaid wages ”was unlawful under domestic and EU law because it prevented access to justice and was a violation of the constitutional right to access to courts and tribunals.”

Data from Citizens’ Advice confirms that the number of cases dropped by around 70%, since the introduction of the fees in 2013. While the fees were intended to discourage vexatious claims, the data shows that the proportion of failed claims also increased, suggesting that claims backed by deep pockets have been the main survivors.

There are also a number of contentious issues still to be decided before the full impact of the ruling can be assessed – for example, will those who were deterred by the cost from making a claim be able to make late claims? Acas revealed that 10% of the individuals who contacted it regarding a potential claim decided not to proceed because of the fees.

The ruling also leaves the government with options. Vexatious claims were a significant problem for smaller firms in particular when the fees were introduced. The court has not ruled out the possibility of a more modest fee structure being introduced when the dust has settled.