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Supreme Court rules employment tribunal fees to be unlawful

The supreme court has ruled fees for those bringing tribunal claims to employers are unlawful

26 July 2017
Kimberley Dondo

In 2013 the government introduced fees of up to £1,200 in an attempt to reduce fraudulent and weak cases, however, a review of the impact of the fees earlier this year revealed there had been a drastic 70% drop in the number of cases since fees were introduced.

Trade Union Unison argued the government were acting unlawfully and prevented workers from getting access to justice.

Rachel Suff, employment relations adviser at the CIPD, the professional body for HR and people development, said:

“The judgement signals a welcome end to the current tribunal fee system. Given the staggering drop in claims since tribunal fees were introduced in 2013, it's clear that the fees were denying access to justice for many people. Sadly, this suggests that some perfectly valid claims have never been heard.”

“If we are to build more open, inclusive and tolerant workplaces then workers have to have the ability to enforce their employment rights and challenge discrimination. It is clear that, not only was the current fee regime failing to provide that opportunity for redress, it did not enjoy the confidence of employers either, as shown by a recent CIPD survey which showed just a third of employers believe the fee system should be left as it is.”

The court found that the fees particularly discriminated against women as a higher proportion of women bring type B claims as opposed to Type A claims which meant they would have to pay the higher fee banding. There was no clear justification from the government as to why this was, aside from transferring costs from tax payers, encouraging earlier settlement and stopping malicious claims.

Sarah Jackson, chief executive of Working Families said:

“This is fantastic news for workers everywhere. And especially for the 54,000 women a year who lose their jobs simply because they have had a child.”

“It's good news for those who will be getting their fees back, but there is no justice for the many women who couldn’t afford to pursue their case in the first place. One of the people we worked with is Casey, who was on a zero hours contract but was working at least 30 hours every week. When she became pregnant, suddenly she found there were no shifts at all available for her – even though all her colleagues continued their usual hours. In effect, she was fired. She had just over £3,000 in savings; there was no way she could afford to spend nearly half on an uncertain outcome, especially with a baby on the way; but her hard earned savings ruled out any help with fees.”

“The only people to have benefitted from fees are rogue employers who felt this gave them a green light to discriminate against new and expectant mothers.”

The government has made a voluntary commitment to reimburse all fees to those who have made claims in the last 5 years, this could cost the government £32 million.

Rachael Jellema, employment lawyer at Browne Jacobson commented on the outcome:

“This is a potentially expensive day for the Government as it is reported that the £32m taken in fees will have to be paid back. It is also a potentially expensive day for employers as the sharp drop in tribunal proceedings over recent years may soon seem like a short period of respite as once again the number of employment tribunal claims look set to rise.”

Peninsula Employment law director, Alan Price advises employers on how to avoid employment tribunal claims:

“Ensuring employers are determining status correctly, applying correct employment rights to every member of staff and not subjecting individuals to unfair treatment is vital. Employers need to get this right to remove the risk of facing a tribunal claim and to avoid their business being scrutinised in public due to judgments now being published on the internet.”

 


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