Supreme Court rules that tribunal fees are unlawful

The Supreme Court has ruled that the fees brought in by the Government for those bringing employment tribunal claims are unlawful and indirectly discriminate against women.

The Government introduced tribunal fees in 2013, meaning workers have to pay fees of between £160 and £1,200 before they can pursue a case. Since then, the number of claims has fallen significantly, particularly for those involving sex discrimination.

UNISON took the case to the Supreme Court, arguing that the fees make it much harder for employees – especially those on low incomes – to challenge bosses who break the law.  The fee system was introduced because the Government said it wanted to reduce malicious and weak claims by employees.

Unison says more than £27m of fees needed to be refunded to those who have taken out cases. There is speculation over whether the Government will seek to come up with a replacement reduced fee scheme as the Supreme Court ruling did not discount some level of fees which would need to be reasonably affordable.

Tim Goodwin, associate at Winckworth Sherwood, said: “The introduction of fees for Claimants in the Employment Tribunals has had an enormous, deleterious effect on working people’s access to justice.  Employees have to stump up fees of up to £1,200 to bring their claims, often for relatively modest sums. This has seen, in some areas, Tribunal claims fall by up to 80%.  Far from dissuading workers from bringing hopeless cases, the fees have discouraged genuine litigants from pursuing their rights simply on the basis that they cannot afford to pursue their employer.  This is reflected in the rate of claims that are won at Tribunal – which has fallen, as a proportion of all cases brought, suggesting that fewer meritorious claims are getting through.

“The Government’s response has been lukewarm.  After a much delayed review of the fees, we have seen no indication that it is prepared to rethink its policy, even in the face of overwhelming evidence and critical committee responses.”

Louise Taft, a lawyer for Freemans Solicitors who advises women on, set out the practical implications of the ruling. She said: “Current Employment Tribunal Claimants will no longer be required to pay fees to issue a claim or before their hearing takes place. The Ministry of Justice say they can ignore requests for payments. Past Employment Tribunal Claimants will be able to reclaim any Employment Tribunal fees they have paid. They should wait to find out the practical mechanism to do this.”

She adds that there could be cases brought for anyone who was not able to bring a case previously because of fees.

A poll earlier this year found nearly seven in 10 working mums say they would be put off taking a case to employment tribunal due to the fees and 12% already had been.  According to the Equality and Human Rights Commission’s latest figures released in 2015 around 54,000 women say they have faced discrimination due to pregnancy and maternity leave, yet the EHRC says fewer than 1% raise a Tribunal claim.


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