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The end of Employment Tribunal fees

In 2013, the Employment Tribunal and Employment Appeal Tribunal Fees Order was introduced. This order changed the rules on making a claim in the Employment Tribunal, the result of which was that those making a claim would be required to pay an initial application fee of up to £250, followed by a hearing fee of up to £950. The stated intention of the order was to prevent vexatious claims from being pursued. Since 2013 however, there has been a persistent and dramatic reduction in people bringing claims, particularly low value and non-monetary claims which tended to show that some claims with merit were also not pursued as well as non-meritorious ones.

In the case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017], the Supreme Court has now unanimously ruled that the Employment Tribunal and the Employment Appeal Tribunals Fees Order 2013 was unlawful and must be quashed. This immediately ceased the need to pay Employment Tribunal fees and requires that all fees paid under the Order thus far are to be refunded. 

The court decided that if the fees are not affordable due to claimants having to forgo a reasonable standard of living to pay them, the effect is that they prevent access to justice. It was held that although the original intentions of the order amounted to legitimate aims, it was not shown that the charging of fees was the least intrusive means of achieving those aims. It was also held that the order indirectly discriminated against women as a higher proportion of women bring more complex “type B” claims, which attract a higher fee.

The ruling causes a number of questions to arise. In particular, what will happen to employees who have not brought a claim in the past four years purely due to their inability to afford the fees? Will they attempt bring a claim against the Government or will the Employment Tribunal consider allowing an extension of time?   At the time of writing any such claims have been stayed.

Whilst no guidance has yet been released detailing how the refund process will work or whether a new fee order will be introduced, one thing is certain:  the judicial system has a busy few months ahead.

Added: 08 Feb 2018 10:02

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