BREAKING: Supreme Court Scraps “Unlawful” Employment Tribunal Fees

In arguably the most significant judgement in employment law over the last 50 years, the Supreme Court has today decided that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 prevents access to justice and is unlawful.

Additionally, it was found that the fee regime indirectly discriminates against women because a higher proportion of women bring discrimination cases.

Sarah Begley of The Wilkes Partnership Employment Team examines this landmark decision and discusses the possible outcomes.

The government introduced fees in 2013 with the aim of reducing the number of malicious and weak cases, but that led to over a 70% reduction in cases over three years.

The short-term consequence will be that the Fees Order is quashed meaning that as of today fees cease to be payable in the employment tribunal and fees paid in the past must be reimbursed (anticipated to be up to £32m).

Of wider significance is the constitutional aspect of the judgement which reinforces the importance of the constitutional right of access to the courts, an essential element of the rule of law. It was held that the Fees Order did effectively prevent access to justice.

In the longer term, it is probable that there will be a government consultation paper to bring in a new fees regime with the possibility of fees at a lower level and/or involving fees to be paid by the respondent. We will have to watch this space but it is unlikely that the fees regime will be abolished permanently.

You can read today’s judgement in full here.

Today’s decision is unwelcome news for employers and the government but welcome news for potential claimants.

If you are an employer and are concerned about your HR policies and employment contracts you can find out more about our new HR Polices for Business Package here.

To discuss anything arising from this update or any other employment matter, please contact Sarah Begley on 0121 733 4312 or via email at [email protected].