Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

Unison has finally succeeded in its four-year campaign against the introduction of tribunal fees that was introduced back in 2013.  The introduction of the fees has seen a reduction of 70% in claims being lodged at the Employment Tribunal.

Lord Reed giving the leading judgement – and who has previously sat on the EU Court of Human Rights – relied on the point that Employment Tribunal cases don’t just assist individuals who feel aggrieved, but that such cases are just as important to society as a whole.

The Supreme Court has ultimately held that Tribunal fees limit, or prevent access to justice and therefore are illegal.

There was also additional reference to the higher fees charged for type “B” claims which include discrimination claims, being discriminatory in themselves.

There is now a huge amount of work to be done as the Supreme Court has indicated that all fees paid since 2013 will have to be returned by Lord Chancellor’s Department.  This is estimated to be more than £25 million.  The Employment Tribunal Service will also have to rewrite its procedures.

The decision also raises queries as to how those individuals who were prevented from bringing a claim because of the fee system that was introduced will be dealt with.  It remains to be seen whether individuals will be able to argue that it will be just and equitable to extend the time for bringing claims that they were prevented from doing so previously.

Whilst it is a landmark victory for Unison, it is expected that the fee regime may not entirely disappear.  It is likely that the current fee regime will be replaced by a new regime following  consultation by the Government.  This will probably take the shape of having fees set at a lower rate and possibly the same fee regardless of the type of claim being pursued.  It will certainly be interesting to see what the Government come up with.

If you’d like to speak to Shiva about the issues raised in this article, please click here.


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