UK Supreme Court finds that Employment Tribunal fees are unlawful

In an important judgment today, the UK Supreme Court has ruled that the introduction of Employment Tribunal fees in 2013 was unlawful and that fees should no longer be charged, with immediate effect.

The Supreme Court effectively agreed with UNISON, the trade union which brought the case, that:

• Employment Tribunal fees interfere unjustifiably with access to justice under both the English common law and European Union law.
• In order for rights given to workers and employees to be effective, and to achieve the social benefits intended by Parliament, they must be enforceable in practice. Employment Tribunal fees mean that in many cases it is not economically worthwhile to bring a claim in the Employment Tribunal, and for many people with low or middle incomes the Employment Tribunal fees are in practice unaffordable. The fee remission system does not alleviate the problem.
• The fees discriminate unlawfully against women and other protected groups because a higher fee is charged for discrimination claims, and this is not justifiable.

The immediate practical effect of this judgment is that fees in the Employment Tribunal and Employment Appeal Tribunal are no longer being charged. It also seems likely that fees paid to date will have to be repaid.

It remains to be seen what remedy there will be for individuals who were prevented or deterred from bringing claims due to the fees charged. It is likely to be impracticable to allow individual extensions of time so that such cases could be brought now. However it remains to be seen whether such individuals would have a claim against the Government for their lost chance of bringing a claim.

The number of Employment Tribunal claims going forward is likely to increase as a result of this judgment, although the requirement for ACAS early conciliation may temper the likely rise in claims.