Abolition of Employment Tribunal Fees

The introduction of Employment Tribunal fees in July 2013 was a highly controversial decision at the time. The Government and those in favour of the fees argued that the fees would help fund the system and would discourage vexatious and frivolous claims. Those against the fees argued that it would deter those with legitimate claims from pursuing them and so would prevent access to justice. They also argued that the fees were disproportionate.

The level of the fees was significant especially in comparison to the fees that are payable at Sheriff Courts. The Tribunal fees were split into two categories, Type A claims (unlawful deduction of wages) and Type B claims (unfair dismissal and discrimination claims). For single claims, the initial fee for lodging claims was £160 for Type A claims and £250 for Type B claims. There was a further Hearting Fee that was due to be paid about one month before the hearing was due to take place. Regardless of how long the hearing was to last (half a day or 5 days) the hearing fee was the same. This amounted to £230 for Type A claims and £950 for Type B claims. If claims were lodged as a multiple claim, such as equal pay and holiday pay claims, then the fees due would depend on how many claimants were included as part of the claim. The more claimants who were included, the less the fee would be per person.

The trade union Unison challenged the introduction of the Employment Tribunal Fees. The initial challenges were rejected although they were allowed to appeal the decisions and the case eventually ended up at the Supreme Court. By a unanimous decision, the Court held that the fees were unlawful and did deny access to justice. One of the arguments used by Unison was that as discrimination claims had a higher fee than other claims and as the majority of those who claim discrimination are female, then the fees discriminated against female Claimants.

The Court ruled that fees that have been paid to date (about £32 million) should be refunded and fees are no longer payable for new claims. It is unclear how the Government will address this issue. Claims that have been lodged after the Unison decision will be on hold until the Government set out proposals of how to deal with this issue. It is unclear if fees will be reintroduced although at a lower level and with fees payable by the Respondent or if the Government will go back to the position of pre July 2013 with no fees payable. In terms of refunding Claimants with fees already paid, the Government will need to set out the mechanism for this to be done. No information has yet been provided to say if fees will be automatically refunded to the Claimants, the representatives or if an application will need to be made by the Claimants to the Tribunal.

The decision of the Supreme Court can be found here and a further update will follow as soon as more information is made available by the Government.