Employment tribunal fees are unlawful under both EU law and domestic law, the Supreme Court has unanimously held.
The fees, which range from £160 to £1,200, were introduced in 2013 and led to a reduction of up to 70% in the number of claims brought forward in 2014-15 and 2015-16.
Unison lost its case at the High Court and the Court of Appeal. However, seven Justices ruled in its favour this week, in R (oao Unison) v Lord Chancellor [2017] UKSC 51. Delivering the lead judgment, Lord Reed said: ‘In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission.
‘The fall in the number of claims has been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.’
He said the unaffordability of the fees meant they imposed ‘limitations on the exercise of EU rights which are disproportionate, and… therefore unlawful under EU law.’ Further, the fees contravened the Equality Act 2010 as they disproportionately affected women.
Elaine Motion, executive chairman of Balfour+Manson, which acted for the Independent Workers Union of Great Britain (IWUGB) in the case, said: ‘This is the one of the most significant judgments in employment law in the modern era.
‘All the evidence pointed to fees denying the principle of access to justice—and the Supreme Court's decision is therefore a resounding victory for justice itself.’
Sarah Rushton, employment partner at Moon Beever, said that the employment tribunal system had been thrown into chaos: ‘The Supreme Court has ruled that employment tribunal fees are unlawful and has acknowledged that they are a barrier to justice ordering that all fees paid since 2013 must now be refunded. Not any easy task where the respondent may have been ordered to pay them. The current online application form will need an urgent review and it will be interesting to see if there will now be a deluge of claims from applicants who might have otherwise been put off.’
David Isaac, Equality and Human Rights Commission Chair, which intervened in the case, said thousands of people may have been ‘priced out of getting justice’, and called for the current policy to be scrapped. He called the judgment ‘a damning verdict on the current regime’.
