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The Supreme Court has Declared that Employment Tribunal Fees are Unlawful!

Unison, the largest trade union in the UK, brought ground-breaking judicial review proceedings challenging the validity and legality of employment tribunal fees in the case of R (on the application of Unison) v Lord Chancellor. This week, the Supreme Court has handed down its judgment and agreed with Unison by declaring that all tribunal fees are, and were, unlawful.

The ramification of this decision is that all fees paid by claimants since 29 July 2013 must now be reimbursed by the government.  This should also mean that tribunal fees will no longer be payable for any future employment claims.

The judgment itself was wide-ranging and detailed but at its core was the principle that the common law right of access to justice must prevail. In holding to this principle the Court rejected the government's argument that employment tribunals were of value only to the litigants involved and had no wider societal benefit. The Court affirmed that individuals need to know that they can enforce their rights if they have to.  This has the knock on effect of ensuring businesses know that if they fail to meet their employment law obligations there is likely to be a remedy against them. As such, it was considered that easily accessible tribunal claims enable legislation to have the deterrent effect that parliament intended when enacting such legislation.

The Court did accept that the rationale for the fees being introduced was to transfer the cost burden to litigants in order to encourage earlier settlements and discourage vexatious claims. However, the drastic fall in the number of tribunal claims since the fees were introduced in 2013 was considered to be so drastic as to conclude that a significant number of people, who would otherwise have brought valid claims, have found the fees to be unaffordable and accordingly not made a claim. The Court said that such a state of affairs was unjust.

As a final point, the government failed to convince the Court that lower fees, or a more generous remission system, would have alleviated the decline in otherwise legitimate tribunal claims.

The government has accepted the Court's ruling and is putting in place systems for reimbursing all tribunal fees paid to date. The bigger issue going forward though is that this decision means that employers should now accept that there is a greater likelihood that employees who are dissatisfied with the way they are being treated will bring tribunal proceedings more willingly. 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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