With effect from 26 July 2017, claimants will no longer be charged a fee to make a claim to an Employment Tribunal or make a subsequent appeal to the Employment Appeal Tribunal. This follows a decision by the Supreme Court that charging a fee ‘effectively prevents access to justice, and is therefore unlawful’.
Fees for these tribunals were introduced in July 2013 with the stated aims of transferring some of the costs of the system away from the taxpayer to the user and discouraging weak or vexatious claims. Fees for an individual claimant ranged from £390 up to £1,200 depending on the complexity of the case. There were separate fee scales for multiple claimants. Additional fees of £1,600 applied for appeals to the Employment Appeal Tribunal. Fees could be reduced for those on low incomes.
The trade union UNISON challenged the lawfulness of fees on the grounds they restricted the right of access to justice, frustrated the operation of employment rights, and discriminated against women.
The judgement, published here, took various factors into account, from the historic rights of access to justice going back to Magna Carta through to the fees charged in county court cases which are graduated depending on the value claimed. It also noted that amounts of compensation in Employment Tribunal cases were often small, and that in some cases there was no monetary award even if the employee won. This might occur, for example, in cases where rest breaks had not been permitted. It also took into account the significant reduction in the number of claims following the introduction of fees.
The system has therefore returned to the original position that employees can bring claims without incurring a fee. Fees charged between 2013 and 2017 will now be refunded to claimants, at an estimated cost to the Government in the region of £32m.
It will be interesting to see if this case has any impact on fee charging by other tribunals including the proposal to introduce fees for appeals to the First Tier Tax Tribunal.
Initial GOV.UK guidance on what to do if a claim is brought against you as an employer can be found here.