Following an appeal brought by Unison, the Supreme Court unanimously decided this morning that Tribunal fees are unlawful, unconstitutional and discriminatory. The fees, which were introduced in July 2013, resulting in around a 70% reduction in claims, are to be quashed as of today.
Unison argued the fees, which range from £160 to £1,200, are a deterrent to employees seeking to bring claims, and therefore hinder access to justice.
In providing the judgement, Lord Reed stated: “Even where fees are affordable, they prevent access to justice where they render it futile or irrational to bring a claim, for example where in claims for modest or no financial awards no sensible claimant will bring a claim unless he can be virtually certain he will succeed, that the award will include recovery of fees, and that the award will be satisfied in full”.
Dave Prentis, the general secretary of Unison, commented: “The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too”.
As a result of the decision, the government will have to refund in excess of £27m for fees that have been paid since July 2013. However, whether the fee will be paid back to the employer in cases where the employee was successful and the employer was awarded to pay the claimant’s fees remains uncertain. What is certain is that the administrative burden of repaying fees will be high.
There is also the issue of whether the individuals who were unable to pursue the claims due to the fees will now be permitted to bring claims out of time.
In addition, with the recent gender pay gap reporting legislation, the decision of the Supreme Court may also lead to an influx of equal pay cases.
It remains to be seen if the fee regime will be abolished completely in the long term, as it would seem likely the government will now launch a consultation process.