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What does the Supreme Court decision on Tribunal fees really mean?

Oct 25, 2017

A landmark decision was reached recently by the Supreme Court, who found that employment tribunal fees are unlawful as they “effectively prevent access to justice”.  Unison has been in a legal battle with the Government since the fees were introduced, stating that the fees made it “virtually impossible or excessively difficult” for some individuals to exercise their employment rights, and that the fees regime indirectly discriminates against some groups.  Emma Kemp, Associate Solicitor, here reviews what this decision means for employers and what the future may bring.

When tribunal fees were introduced in 2013, the Government reported that claims being brought to the Employment Tribunal dropped off by 79%.  At the same time, the minimum service required to bring a claim rose from one year to two years, and ACAS Early Conciliation (a process to attempt to resolve disputes between employer and employee without going to Court) was introduced.  It is therefore difficult to measure the exact impact the fees had on tribunal claims, and to predict whether the abolition of fees will see the number of claims being brought rise dramatically. 

What does this mean for employers?

There is currently speculation as to whether the Government will seek to introduce a different fees regime after a period of consultation, potentially with the employer paying a fee when they lodge their response or subsequent paperwork.  However, for the time being employees are not required to pay a fee if they wish to issue an employment tribunal claim.  The fees were abolished with immediate effect following the Court’s decision. 

Even though there is no payment to be made by the employee, they still have to be eligible to bring the claim, i.e. still have two years service for ordinary unfair dismissal claims.  While the time limit for lodging a claim remains at three months following the action complained of, there is speculation that this may be extended to allow those who were put off bringing a claim by the fees.  

The Government have also said that they will pay back the tribunal fees which have been paid since 2013, amounting to approximately £32million.

“It could be that claimants with more trivial or low value claims who were put off by the fees will not now be deterred from claiming,” explains Emma.  “It is therefore important that employers ensure they follow the correct procedures when managing staff and take legal advice when a potential issue arises.”

If you are concerned about the impact the removal of tribunal fees could have, or you need advice regarding one of your employees, you can contact the Employment Team on 02380 717717 or email employment@warnergoodman.co.uk.

 ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.