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Supreme Court holds Employment Tribunal fees unlawful

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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?