Region reacts to Supreme Court ruling on unlawful employment tribunal fees

Professionals from around the region have given their reaction to a Supreme Court ruling that fees for bringing employment tribunal cases are unlawful and must be quashed.

The court ruled that the fees, which range from £390 to £1200, prevented access to justice for those unable to afford the costs of bringing their case.

A claimant who has paid a fee to bring an employment tribunal claim since the Employment Tribunal Fees Order came into effect in 2013, may be entitled to have their fees repaid by the Government, at an estimated total cost of around £32m.

Emma Hamnett, a partner and specialist in employment law at Clarke Willmott, which has an office in Birmingham, said: “The Court noted a dramatic and persistent fall in the number of claims brought in the employment tribunals with fees being the most frequently cited reason for not submitting a claim.

“The Court also held that the payment of fees was indirectly discriminatory for those individuals bringing claims to protect characteristics such as age, disability, race and sex.

“The decision, which is effective immediately, is being heralded as a victory for “workers and common sense” and provides clear statements on the importance of the rule of law and the constitutional right to access to justice.”

She added: “It’s a good news day for workers who faced these fees at a financially vulnerable time having just lost their job.  However employers will now see a rise in the number of tribunal claims threatened and then brought and a return to a more litigious working culture.”

Ben Gorner, employment partner at law firm Gateley, said: “The employment tribunal system will also have the administrative nightmare of having to repay the fees already paid by claimants.

“The fees were also found to be indirectly discriminatory. Higher fees are payable for discrimination claims than for some other employment claims. This had placed certain claimants at a disadvantage. The example given that a higher proportion of women than men brought discrimination claims and so were placed at a particular disadvantage when compared with men. It was possible that indirect discrimination could be justified but the Court was not convinced that there was evidence that the fees were proportionate.

“There may be fears that the decision will open the floodgates to nuisance claims. However the employment tribunal does have the power to award costs where it is found that proceedings have been brought unreasonably and there have been signs that this power is now being used more by Employment Judges.

“Looking further in the future, will access to the employment tribunal remain free or will the Government seek to introduce another fee system? It would appear that any new fee would have to be set at a much lower level if they are to survive a challenge.”

Paul McFarlane, partner and employment law specialist at Weightmans, said: “This is a dramatic and largely unexpected ruling with potentially far-reaching implications for UK businesses.

“By most measures there has been a significant reduction of between 60-70% in ET claims since 2013.  Employers will be concerned that they may have to deal with a significant increase in claims, with the increase in management time and costs required to deal with these extra claims.  This may mean that employers could have less time or resource to devote to using other means to resolve internal dispute, such as mediation.

“There may also be implications for ACAS – who are required to provide early conciliation – and the tribunal system itself, as both will need extra resources to deal with a significant increase in claims.

“At least in the short term, access to the employment tribunal is once again free of charge. It will therefore be more important than ever for employers to have robust policies and procedures in place and follow those fair procedures to promote workplace resolution and also best manage the risk of litigation.

“Whatever your view on fees, it is essential, and of benefit to employees and their employers alike, that the rule of law and access to justice is protected.”

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