On 26 July 2017, one of the most important judgments in the past 50 years of employment law was handed down. Yes, in an age of gloomy economic forecasts and disgruntlement in the workplace from squeezed workers, news reached us last Wednesday that restored our faith in the justice system.
The Supreme Court in R (on the application of Unison) v Lord Chancellor declared that employment tribunal and EAT fees are unlawful under both domestic and EU law. The Court’s view is that the Fees Order that introduced the fees was unlawful from the outset and must be quashed because it has the effect of preventing access to the tribunal system. Well, this is what critics of the fees have been saying since their introduction and they no doubt did a double take after the judgement. Fake news? Nope, a sensible ruling on the backdrop of research that revealed a 70% drop in the number of cases brought in the employment tribunal, since the fees were introduced.
It was Unison who waged a four year legal battle to get the fees scrapped, arguing that they prevented workers from seeking justice and were discriminatory towards women. To those who say trade unions are for bygone eras, think again!
The Supreme Court unanimously decided against the Government and found it was acting unconstitutionally when it introduced the fees. The immediate consequence of this decision is that the Fees Order is quashed meaning that tribunal and EAT fees cease to be payable and fees paid in the past must be reimbursed.
The fees were introduced under the Employment Tribunals and Employment Appeal Tribunal Fees Order on 29 July 2013, by the then Lord Chancellor Chris Grayling, in a bid to reduce costs and free up clogged courts. Under this Order, employment tribunal claimants and EAT appellants were liable to pay a fee of up to £1200 in order to bring and pursue claims and appeals, unless they qualified for fee remission on the basis of their disposable capital and gross monthly income.
In the main judgment, the Supreme Court noted that there is a difference between the level of the fees in the tribunal and those fees in the small claims court, where it is much cheaper to bring a small value claim. In addition Baroness Hale concluded that it was indirectly discriminatory to charge higher fees for type “B” claims (which include discrimination claims) than type “A” claims.
So what will happen next?
Firstly, this is a fantastic result for Claimants as it means individuals who have been treated badly by their law-breaking bosses can now take action without worrying about whether they can afford to finance a claim at the Employment Tribunal. However, it is unlikely the fees regime will disappear for good. It is possible the Government will bring in reduced fees under a new regime.
In a further victory for those who had to pay fees since 2013 the Supreme Court has confirmed that they will need to be refunded (approx £32 million). The immediate impact can already be seen as it is understood that employment tribunals are now refusing to take fee payments when hard copies of ET1 claim forms are presented in person.
Unfortunately, we will never know exactly how many people missed out or were put off taking action against their employers for unlawful actions in the workplace. However, it seems that the principles of fair access to justice have prevailed and this case is a significant step in the right direction towards balancing employer-employee rights in the workplace.