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The Supreme Court today announced in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 that the Employment Tribunal fees regime is unlawful.

The tribunal rules have, since 2013, required issue fees of £160 or £250 and hearing fees of £230 or £950 to be paid by claimants who wish to pursue Employment Tribunal claims.  The higher fees apply to more complex claims such as unfair dismissal or discrimination.

Tribunal fees indirectly discriminate against women

The trade union Unison pursued an application for judicial review through the High Court, Court of Appeal and finally the Supreme Court, arguing that the fees restricted access to justice by setting such a high limit.  Unison also argued that the fees regime indirectly discriminated against women – who were more likely to pursue discrimination claims – than men.

The Supreme Court found that the fees interfered with access to justice, with Lord Reed stating in paragraph 68 that: “People must in principle have unimpeded access [to the courts].  Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.  That is why the courts do not merely provide a public service like any other.”

Put simply, the Supreme Court found that the higher fees charged for theoretically more complex claims could not be justified.

The statistics showed that claimants with good claims were deterred from bringing them.

The immediate effect of the ruling is that tribunal fees are no longer payable. However, this is unlikely to lead to a dramatic increase in employers facing unmeritorious claims.  The Supreme Court noted that the fees charged had little effect on deterring such claims.

The judgment will pose a significant administrative burden to the tribunal system, as fees paid will have to be refunded, which will require untangling a potentially complex web before the money is refunded to the paying party – in some cases, fees having been paid or reimbursed by the employer, trade union, or insurance company.

For more information on any of the issues raised in this article or for advice on employment law matters in general, please contact David Leslie in our Leeds employment team by emailing [email protected] or calling 0113 368 7804.