Back in 2013 the coalition government introduced Employment Tribunal fees. For the first time, it became necessary for individuals to pay an ‘issue fee’ (to issue a claim) and a ‘hearing fee’ (if the case went to trial). It could cost an individual £1,200 per claim in fees alone to take their employer to a trial at a Tribunal.
UNISON (the union) immediately challenged the introduction of Employment Tribunal fees in court because fees impeded their members’ ability to enforce their rights as employees. Indeed, following the introduction of fees, the number of claims brought by individuals dropped by around 70%. The government won in the High Court and the Court of Appeal but UNISON won in the Supreme Court.
The Supreme Court said that by introducing fees, the government had acted in a way which went beyond the powers granted to it by Parliament. It said that access to justice is fundamental to the rule of law; if laws protecting employees cannot be enforced, the laws are meaningless and become “dead letter”. It said by introducing fees, the government had prevented access to justice in a disproportionate way. The Supreme Court ruled that the requirement to pay fees was void ab initio – as if it had never existed.
The Ministry of Justice will now have to repay fees that it has received to date (said to total around £30m).
Many questions still remain. Will the number of claims go back up by 70% to pre-2013 levels? Some employers reimbursed individuals’ for paid fees when settling claims – will they be reimbursed direct? Some claims were struck out because individuals didn’t pay the correct fees – will those claims now be reinstated? And will there now be an analogous challenge to the fees for issuing claims in the High Court?
All is not lost for employers though, even if more claims start being issued. For instance:
- individuals wanting to bring claims will still have to go through the ACAS Early Conciliation process (which became mandatory in May 2014 and is still in force),
- it will still be possible to apply for deposit orders against employees who bring claims which have little reasonable prospect of success, and
- employers can still apply for claims to be struck out on the grounds they are ‘scandalous or vexatious’, if the manner in which the proceedings have been conducted has been ‘scandalous, vexatious or unreasonable’ or if they have not been actively pursued by the claimant.
If you would like to receive our regular monthly Employment Law Bulletin please contact firstname.lastname@example.org