On 26 July 2017 the Supreme Court in London ruled unanimously that the government’s fee regime for the Employment Tribunals and the Employment Appeal Tribunal is unlawful and must be quashed.
The fees had been introduced on 29 July 2013 and it is reckoned that about £30m to date has been paid in tribunal fees. Before the fees were introduced, claimants did not pay anything to the tribunal to start a claim or to get a hearing. This changed and it suddenly cost £1200 in total (£250 to start the claim and £950 to hear the claim) in tribunal fees alone to run a claim. There were exemptions and remissions for those with very low incomes and savings but for many working people of relatively modest means, the full fees were payable and this put people off.
Access to justice and discrimination
As well as the effect on peoples’ access to justice, the Supreme Court accepted that, as a proportion more women brought Type B claims (which include discrimination claims) than Type A claims (which include wages claims) and that women were at a substantial disadvantage because the difference in the level of fees between Type A(£390) and Type B(£1200) is very significant.
What happens next is likely to be a major headache for the government and the Tribunal Service. Fees had been paid electronically over a 4 year period. It is likely that some of those fee payers will have changed address and may be difficult to contact. If someone loses a job, it is often the case that they may need to downsize their home or move to another area to find work.
There has been no mention of interest being paid on the unlawful fees.
For people looking to make new claims, the online claim form still has a requirement to pay the fees, now ruled to be unlawful. It will need to be changed and very quickly. Theoretically, the Employment Tribunal should accept a paper claim without a fee in person or by post.
If you have used Askews to make an Employment Tribunal claim, we will try and contact you, probably by email over the next few days with an update. However, we have been given no indication as to how the government intends to deal with repayment of fees or the timescale to do so.
Please note Askews did not receive any tribunal fees and we cannot repay them. Any repayments must come directly from the Employment Tribunal Service. We suggest you beware anyone who asks you to sign up to ‘make a claim’. It may take a little while but the unlawful fees should eventually be repaid without any cost to those who paid them.
If there is further significant news, we will prepare an updated article.
Despite the obvious administrative headache, this is extremely good news for people using the Employment Tribunal . Any Employer who refunded tribunal fees to a claimant should also be able to recoup that payment from the Employment Tribunal Service.