The Supreme Court has confirmed that Employment Tribunal and Employment Appeal Tribunal fees are unlawful and will be quashed.
Tribunal fees were introduced back in 2013 which resulted in a 70% reduction in Tribunal claims being issued. Unison has been fighting the case against Tribunal fees which has resulted finally in today’s judgment.
In particular, the Supreme Court found:
The cost of bringing a Tribunal claim is much more expensive than bringing a small claim in the small claims court.
The requirement to pay Tribunal fees effectively prevents access to justice and imposes unjustified limitations on the ability to enforce EU rights.
The higher fee payable in respect of Type B claims is indirectly discriminatory.
So what does this mean?
No one is certain at present. However, it is likely that Tribunal fees will not be abolished entirely and instead a lower fee regime may be imposed. It could also be possible that employers are required to pay a fee to lodge a defence to a Tribunal claim.
Will fees be refunded?
Yes – the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded.
But, how will this be managed? Who will sort out the potential problem arising from Respondents who have been ordered to pay claimants tribunal fees? Will there be a manual search of the Tribunal’s system or will claimants be required to submit an application for a refund?
What about those people who did not bring a Tribunal claim because they could not afford the fee?
Will Tribunal judges be open to accept arguments that it was 'not reasonably practicable' for those people to have brought claims because they were obstructed by an unlawful fee regime? Or, will it be 'just and equitable' to extend the time limit for bringing a claim in light of today's decision?
These questions may need to be determined by a judge at a Preliminary Hearing before the Tribunal can even determine whether it has jurisdiction to hear the main claim. This is likely to cause delays and increase costs for all involved.
What is certain is the fact that interesting times are ahead, so watch this space.