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Health and Safety Consultants / Human Resources  / Are tribunal fees unlawful?
14 Aug

Are tribunal fees unlawful?

Following recent actions on the 26 July, the Supreme Court handed down judgment in the case of R (Unison) v Lord Chancellor. Unison’s appeal was a challenge to the lawfulness of Employment Tribunals fees. The Court has found that the fees unlawfully hinder access to justice and the relevant Fees Order – the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, has been quashed.

 

It is unlikely that tribunal fees will the abolished completely as there will most likely be a government consultation on a new fees regime which may include lower fees and/ or fees that will be required to be paid by an employer in a defending a claim. Although with the upcoming agenda the government’s priorities will lie with Brexit which could run a risk of another judicial review with any new fee order that is introduced.

 

Following the abolishment of fees, the tribunal service is required to update both the tribunal rules and the online claim form. Following the ruling of unlawful tribunal fees, the online service has already been taken offline for maintenance work to be completed due to the fees reference. During the update, anyone that is seeking to issue an Employment Tribunal claim will need to complete an ET1 form and submit it via post or in person to the relevant office. Please see the link below where you can find full details on how to submit a claim:

https://www.gov.uk/employment-tribunals/make-a-claim

 

The Supreme Court has made it clear that all fees paid between 2013 and now will have to be refunded.  This is easier said than done and raises many questions:

Will employees have to apply for refunds or will this be done automatically?

 

In many successful claims by employees, employers may have been ordered to pay the tribunal fee which will require these cases to be found manually. As a result of this it is unclear whether employers will be asking for a refund from the employee or will this be refunded by the government?

 

Another question that has been brought forward following the abolishment of fees is what about employees that have paid the fee but settled their claims outside of tribunal? If a refund is granted to the employee will the employers that settled be able to recover part of the settlement representing fee? Who will it be recovered from, the government or the employee?

 

The abolishment of fees may also see old claims be brought to tribunal as employees who may have been put off by the fees could argue that they did not bring their claim forward due to the fees which have now been deemed unlawful or there could be potential claims to sue the government as the employees believe they have been unlawfully denied access to justice during this period.

 

Tribunal fees being reintroduced could have had an effect on how employers make decisions on not so straight forward cases as the fees introduced may have put employees off attempting to make a claim against their employer. Following the recent abolishment of fees this may lead to employer acing more cautiously in future until more information is provided on the new system.

 

Unions have used these tribunal fees to entice employees to increase their membership figures, with tribunal fees being removed will Unions suffer and see a rapid decrease in members?

 

The biggest question to ask now is will employment tribunals increase by 70% back to 2013 levels and if so, can the Tribunal Service and ACAS cope?

If you would like to discuss in depth about the recent changes to Employment Tribunal please don’t hesitate to give us a call.

  • It is possible we will see a raft of old claims.  We might see people, who chose not to bring a claim because of the fees, argue that they were prevented from doing so because the fees were unlawful and try to bring their claims now.  Or potentially they could sue the government because they were unlawfully denied access to justice.