1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Supreme Court holds Employment Tribunal fees unlawful

It’s rare for employment law to make “breaking news” headlines (unless you count President Trump’s attacks on his own staff). But that’s what happened, if briefly, with yesterday’s decision by the Supreme Court that the Employment Tribunal fees regime introduced controversially in 2013 was unlawful.

The decision was surprising partly because UNISON, which brought the claim, had lost the three previous hearings in the lower courts.  However, it was also surprising because it was based first and foremost on profoundly English common law principles relating to the constitutional right of public access to justice, and only secondarily on EU law and European human rights principles.  The lead judgment even cites Magna Carta as a guarantee of access to courts which administer justice promptly and fairly: “Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”, as is probably not often said on the Clapham omnibus (“We will sell to no man, we will not deny or defer to any man either Justice or Right.”)

So the result can perhaps be thought of as Brexit-neutral – Brexiteers cannot claim that this was EU-inspired interference with British sovereignty but neither can Remainers assert that the result would necessarily have been different had the UK not been an EU member.

In reaching its decision, the Court reviewed the evidence regarding the effect of fees on Tribunal claims, noting: “… a dramatic and persistent fall in the number of claims …” since fees were introduced three years ago.  The Court also observed that many claims are for modest amounts and that if: “… fees of £390 have to be paid in order to pursue a claim worth £500 (such as the median award in claims for unlawful deductions from wages), no sensible person will pursue the claim unless he can be virtually certain that he will succeed in his claim, that the award will include the reimbursement of the fees, and that the award will be satisfied in full.”

Readers should note the immediate practical effect: the 2013 Fees Order has been held unlawful and quashed, so that as from yesterday, fees have ceased to be payable for Employment Tribunal claims and appeals to the Employment Appeal Tribunal. Moreover, the Lord Chancellor has given an undertaking to reimburse all fees previously paid.

It remains to be seen whether there will be a return to the pre-2013 level of Tribunal claims or whether the Government will attempt to re-introduce fees in a different form – the Supreme Court said that fees would be lawful so long as they were not indirectly discriminatory (or justified if they were) and: “… if set at a level that everyone can afford, taking into account the availability of full or partial remission.” Hold the front page?

Supreme Court holds Employment Tribunal fees unlawful

Insight: UK Employment Law Round-up – December 2016

Employment Round Up THUMBNAIL Welcome to the December edition of our employment law round-up. In this edition, we couldn’t fail to give you an update on the most important piece of constitutional litigation of our time, which has been heard by the Supreme Court on Article 50. Other festive treats include a summary of recent restrictive covenants cases (first published on HR-Inform) and unfair dismissal litigation. We have also given you our take on calculating rest breaks for workers, and the dangers of using employees’ personal data unlawfully.

Read the full newsletter here.

Insight: UK Employment Law Round-up – December 2016

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016

Insight: UK Employment Law Round-up – October 2016

UK Employment Law Round-up In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

Insight: UK Employment Law Round-up – October 2016

Insight: UK Employment Law Round-up – September 2016

UK Employment Law Round-up In this issue, we look at whether a job applicant can gain protection under the Framework and Equal Treatment Directives if the purpose of the application is to gain the status of someone who can make a claim to gain compensation.

In our case law review, we will also re-visit what constitutes “normal remuneration” when calculating holiday pay and whether a reasonable adjustment for a disabled employee can extend to payment protection.

We provide guidance on how offers of employment should be made to ensure that communication about employment is not misinterpreted by prospective employees.

We also report on the most recent developments regarding the Apprenticeship Levy and the changes to the taxation of termination payments.

Read the full newsletter here.

Insight: UK Employment Law Round-up – September 2016

Insight: UK Employment Law Round-up – August 2016

Employment Round Up THUMBNAIL In this month’s issue we consider the case of Dronsfield v. University of Reading, in particular the EAT’s observations in that case about how disciplinary investigations should be conducted and the role of HR in finalising investigatory reports and disciplinary decisions.

We also look at a recent case on the definition of “worker” for whistleblowing purposes, which established that, in some circumstances, a “worker/employer” relationship may be established between an agency worker and an end user.

We consider the “cautionary tale” of Byron Burger on how not to assist in a Home Office investigation, with a brief reminder of the risk of not carrying out appropriate “right to work” checks.

Finally, we consider what’s next for UK employment law – not just in the context of Brexit, but also in terms of the pledges and agendas our political leaders have set out.

Read the full newsletter here.

Insight: UK Employment Law Round-up – August 2016

Insight: UK Employment Law Round-up – July 2016

In this issue, we look at whether Britain’s decision to leave the European Union is actually likely to have a significant impact on UK employment law.

In our case law review, we will also consider the extent to which without prejudice privilege attaches to protected conversations.
UK Employment Law Round-up – July 2016
There is also some useful guidance from recent case law about the types of dismissal to which the ACAS Code of Practice on Disciplinary and Grievance Procedures applies.

We give comment on the current position in relation to Employment Tribunal fees, and the implication of the equal pay claims brought against ASDA in the Employment Tribunal.

Read the full newsletter here.

Insight: UK Employment Law Round-up – July 2016

Insight: UK Employment Law Round-up – June 2016

In this issue we look into the implications of misusing data in the employment context. In particular, we utline recent ICO prosecutions of employees for unlawfully obtaining data. We also look at a decision involving interim relief and an order for the deletion of data.

UK Employment Law Round-up – June 2016In our case law review we also analyse the Advocate General’s view on a ban on wearing a headscarf at work and whether that is discriminatory under the European Directive.

For those concerned about issues involving working time, there is a helpful clarification about injury to feelings awards in the context of Working Time Regulations claims.

There are also some indications of future legislative changes in relation to the National Minimum Wage and increasing the representation of black and minority ethnic workers in the workplace.

Read the full newsletter here.

Insight: UK Employment Law Round-up – June 2016

Insight: UK Employment Law Round-up – May 2016

During our Annual Update seminar on 27 April 2016, we discussed some of the legislative changes that employers should look out for over the next 12 months. One of these was the Trade Union Bill having now received Royal Assent.

UK Employment Newsletter 3DCoverIn this issue we also look at the EU’s Trade Secrets Directive and how this could impact on whistleblowers in the UK, as well as the Government’s call for evidence on the use of non-compete clauses.

We will also analyse cases which look at whether employees have a right to privacy in the workplace regarding email communications, whether terms contained in an employee handbook can be incorporated within an employee’s contract of employment and how tribunals should approach the remedy of re-engagement.

Read the full newsletter here.

Insight: UK Employment Law Round-up – May 2016

Insight: UK Employment Law Round-up – April 2016

29280_Employment-Round-Up_THUMBNAIL In this issue, we consider the requirements of recent legislative changes including the new whistleblowing regime for financial institutions and the updated employment rates/limits for 2016/2017. Hot on the heels of International Women’s Day, we also explain how the spotlight on diversity continues with the release of EHRC guidance on improving diversity at senior levels of business. Another complicated area for clients can be dealing with issues surrounding PHI schemes and we analyse a recent decision in this field.

Read the full newsletter here.

Insight: UK Employment Law Round-up – April 2016