In July this year the UK Supreme Court ruled that employment tribunal fees interfered unjustifiably with the right of access to justice under both the common law and EU law, and discriminated unlawfully against women and other protected groups who typically brought “Type B” claims which attracted higher fees.
In 2013 the Government introduced fees of up to £1,200, in an attempt to cut the number of malicious and weak cases brought before the employment tribunal causing a 66%-70% reduction of cases. These fees ranged between £390 and £1,200; discrimination cases cost more for claimants due to the complexity and time the hearings took. The Supreme Court found that this was indirectly discriminatory within the meaning of Section 9 of the Equality Act 2010 , because a higher proportion of women would bring discrimination cases than men.
As a result of this successful appeal by the trade union, known as Unison, the UK Government have been ordered to pay £32 million back to claimants. Unison General Secretary Dave Prentis said:
“The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.”
“These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.”
“We’ll never know how many people missed out because they couldn’t afford the expense of fees.”
Justice Minister Dominic Raab said:
“We respect the judgement and we are going to take it fully on board and we are going to comply with it.”
It would fall to the taxpayer to pick up the bill, he said.
“The tricky, the difficult, the fluid balancing act that we’ve got is we want to make sure there’s proper access to justice, we want to make sure frivolous or spurious claims don’t clog up the tribunal and at the same time we’ve got to make sure we’ve got the right way to fund it.”
A landmark case that now quashes the order given by the Chancellor in 2013, it is worth noting that although an abolition of fees means that the employment tribunal will see more claims, potential claimants’ need to be aware that a mandatory early conciliation process is still available to reach a settlement with an employer. Potential claimants’ should still carefully consider the merits of their case before proceeding as the tribunal may award the opposing legal costs to the opposing side, where the claim is unsuccessful.
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