The Supreme Court has confirmed that the current Employment Tribunal fee structure is unlawful and discriminatory, agreeing with Unison’s argument that it restricted individual’s legal right to access to justice, particularly for lower paid workers
Since 2013, most people wanting to pursue workplace disputes – in relation to matters such as unfair dismissal, discrimination and non-payment of wages – have been required to pay fees of up to £1,200 in order for their claim to be heard.
Fee rates are split into two levels, with more simple claims attracting a lower fee, and what were deemed more complex matters (including claims for discrimination) being subject to higher fees.
The aims of the introduction of tribunal fees was to pass some of the cost of the tribunal system from the taxpayer to people making claims, and to reduce the number of “nuisance” claims being brought by opportunist workers hoping for a settlement.
Reports have suggested that the initial introduction of the employment tribunal fees contributed to around a 70-80 per cent reduction in claims being brought, which was seen as concerning by unions and some politicians.
The Court also accepted Unison’s complaint that the system is inherently sexist.
It is, undoubtedly, unfair against women, who bring a higher proportion of discrimination claims for gender and pregnancy related reasons.
As discrimination claims attracted the higher level of fee, Unison argued that, as a group, women were disproportionately disadvantaged by the tribunal fee system.
The Court agreed. And while the ruling is important for all workers who wish to bring claims against their employers, it is a landmark decision in terms of gender equality in the workplace.
This is a huge decision both legally and politically, and one of the strongest examples of the court system being willing to limit the government’s power to pass laws.
As well as overhauling the tribunal process, and ameliorating the ability for members of the public to bring claims, this will also likely result in a significant hit on the court system’s coffers. Especially so, given that it has been confirmed that fees already paid are to be reimbursed – estimated to cost the taxpayer a whopping £30m.
Although this is an important result for Unison – and for employees’ rights generally – it may not result in a total abolition of the tribunal fees regime.
The government has initially confirmed its intention to immediately stop charging fees. However, it is possible that the government will use the guidance provided by the court to set out proposals for a fairer, lawful fee structure, which should be cheaper for individuals, significantly reducing the negative impact the fees on claims bring.
In the meantime, the ruling will unequivocally result in an uptick in claims, which will be welcomed by those who consider tribunal fees to restrict fair access to justice.