Supreme Court rules employment tribunal fees illegal

Sarah Lamont | Employment, Bevan Brittan

On 26 July 2017 the Supreme Court handed down its most significant employment law decision in decades, and ruled that employment tribunal and employment appeal tribunal fees are illegal. Since 2013, the fee payable for most claimants to take a claim to full tribunal hearing has been up to £1,200 and up to £1,600 for an employment appeal tribunal hearing.  In R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court held that this prevents access to justice and is indirectly discriminatory against women and is, therefore, illegal.

The immediate practical impact of this is that fees are now no longer payable in the employment tribunal or employment appeal tribunal, and fees paid in the past must be reimbursed, including those paid by respondents.  It is not clear at the moment how the Employment Tribunal Service will deal with claims currently going through the tribunal system.

It is also possible that historic, out of time, claims will be resurrected, with claimants arguing that it would be just and equitable to extend time if they were deterred from bringing a claim due to an unlawful fee regime (i.e. discrimination claims); or that it was not reasonably practicable for them to bring their claim in time because of the cost (i.e. unfair dismissal claims).

The Government has not yet published its response to the judgment, but it is highly likely that they will issue a consultation on introducing a new fee regime, with a lower level of cost for claimants or a shared cost between claimants and respondents. Until a new fees regime is introduced, we expect to see an immediate spike in claims, with a levelling off once a new regime is in force.