Employees who have brought claims in the Employment Tribunal and Employment Appeal Tribunal in the last four years stand to recover the fees they incurred following a judgment of the Supreme Court on 26 July 2017.
The court ruled that the order bringing into effect the new fees from 29 July 2013 was unlawful from the word go and should be quashed, as the level of the new fees serves to inhibit employees from obtaining access to justice, is in breach of both domestic and EU law and is also discriminatory against women. In order for the fees to be lawful, they had to be set at a level that everyone could afford, taking into account the availability of full or partial remission.
The coalition government introduced fees for issuing a claim and having a hearing, varying from £390 to £1,200 depending on the type of claim. The more expensive Type B cases include discrimination claims. As women are more likely to bring discrimination claims than men, the fees were ruled to be indirectly discriminatory under s19 of the Equality Act 2010.
The Supreme Court made clear that all fees paid since July 2013 will have to be refunded by the government. The sum involved over all is estimated at about £32 million. No fees will now be charged for bringing Tribunal claims, at least until there is a new regime in place, about which the government is promising consultation. The minister responsible said after the hearing: “The difficult balancing act that we’ve got is we want to make sure there’s proper access to justice, we want to make sure frivolous or spurious claims don’t clog up the tribunal and at the same time we’ve got to make sure we’ve got the right way to fund it.”
There are likely to be legal complications arising out of this decision, such as whether Respondents who were ordered to pay Employment Tribunal fees incurred by Claimants should also be entitled to a refund. It does, however, mean that employees, some of whom might have lost their jobs, will not be faced with punitive fees if they want to obtain justice.