The Supreme Court has ruled that employment tribunal and EAT fees are unlawful and it has quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 with immediate effect. The abolition of fees seems likely to result in a significant increase in new tribunal claims being brought by claimants, given that the number of claims has decreased by about 70% since fees were introduced.
The Supreme Court held that the fees regime was unlawful under both UK and EU law as it has the effect of preventing access to justice and imposes unjustifiable limitations on the ability to enforce EU rights. It did acknowledge that the government’s aims in introducing the fees regime were potentially legitimate, but found that the current high level of fees was not a necessary means of meeting those aims; the government couldn’t impose whatever fees it chose in order to achieve its aims.
In addition, the higher fees payable for “Type B” claims, which includes discrimination claims, were held to be indirectly discriminatory against women and other protected groups.
As a result of the Supreme Court’s judgment, fees are no longer payable for lodging or pursuing new claims before the employment tribunal or for lodging appeals before the EAT. HM Courts & Tribunals Service has launched an updated online tribunal claims service without any reference to fees and its website has been amended to make it clear that claimants do not have to pay a fee to make a claim.
In addition, all fees paid by claimants since July 29, 2013 will be reimbursed by the government and it will announce the details of a refund scheme in due course. It is not yet clear what will happen where the respondent employer repaid the fee to the claimant under either a cost order following a successful tribunal claim or under a settlement agreement.