The Supreme Court has today unanimously ruled that Employment Tribunal fees are unlawful under both domestic and EU law.

The Employment Tribunals and the Employment Appeals Tribunal Fees Order 2013, SI 2013/1893 (the “Fees Order”) was introduced in July 2013 by the then Lord Chancellor, Chris Grayling. Up until then, a claimant could bring proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees.

The Trade Union, UNISON, appealed to the Supreme Court following proceedings for Judicial Review in which UNISON argued that the Fees Order was not a lawful exercise of the Lord Chancellor’s statutory powers. UNISON argued that the implementation of fees interfered unjustifiably with the right of access to justice, that the fees frustrated the operation of Parliamentary legislation granting employment rights and that the fees discriminated unlawfully against women and other protected groups.

The Supreme Court agreed, finding that the Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice and therefore it must be quashed.

The Supreme Court also found the fees were indirectly discriminatory to women. This is because the higher fee scale implemented under the Fees Order, which apply to claims such as discrimination, equal pay and unfair dismissal put women at a particular disadvantage: A higher proportion of women bring claims which are caught by the higher fee scale and the Court found that the charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order.

Since the Fees Order was introduced, the amount of Employment Tribunal claims brought has fallen by a substantial 79%, and evidence put before the Court showed that “fees” was the most frequently cited reason for not submitting a claim.

UNISON said that the Government will have to refund over £27 million in Employment Tribunal fees that has already been spent by Claimants.

We will never know how many people missed out because they could not afford the fees but at least going forward, the position is as it was pre-July 2013.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

For further information, please contact Sikin Andela