Supreme Court ruling: employment tribunal fees are unlawful

Surprised businessman

The Supreme Court has ruled that the existing employment tribunal fee system is unlawful and must be scrapped.

The current fee system, introduced in 2013, has led to a 70 per cent fall in claims. Unison, the appellant in the case, says the system has prevented access to justice for certain workers. Under the ruling, the government must refund all tribunal fees paid by workers since 2013.

In a separate judgment, the Supreme Court ruled that charging higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims was indirectly discriminatory.

What will happen next?

The exact course of action the government will take now is uncertain and a consultation may follow. It is unlikely that tribunal feels will be abolished altogether. Instead, it is possible that lower fees will replace the existing fees and/or the employer involved in the claim will have to pay a fee when it lodges its ET3 (employer’s response form).

Gaby Hardwicke Employment Law Services Partner Paul Maynard commented: “No one knows for sure what will happen next, save that it will be bad news for employers, who since the introduction of fees in the employment tribunal have been enjoying a break from the more speculative claims which seemed to thrive under the previous free-to-issue regime.”

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