In 2013, the government introduced employment tribunal fees under a secondary legislation rather than a full Act of Parliament. After losing its case challenging the government’s decision - at both the High Court and the Court of Appeal - the trade union Unison appealed to the Supreme Court and won. As a result, £27m in fees paid will be returned by the Government to those who paid to take their employment complaints to tribunal.
A unanimous judgment of seven Supreme Court judges noted that employment tribunals “are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid; those who have recently lost their jobs and those who are vulnerable to long-term unemployment.”
The judges concluded that the fees were preventing access to justice and as women were more likely to bring more serious and costly Type B cases - rather than Type A cases - the charges were also deemed to be discriminatory towards them.
Labour’s shadow justice secretary Richard Burgon said: “The Conservative Government should do the right thing, accept the ruling and consign their immoral Employment Tribunal Fees to the dustbin of history, rather than spending more taxpayers’ money trying to defend the indefensible. It’s an important day for access to justice for ordinary working people everywhere. The Conservative Government – which in coalition with the Lib Dems brought in this immoral restricted access to justice – must now pay a £32 million price for attacking workers. Labour’s manifesto pledged to abolish Employment Tribunal Fees. Labour’s position has been vindicated by the highest court of the land and Unison should be congratulated on winning a victory for working people everywhere.”
Unison general secretary Dave Prentis said: “The government is not above the law. But when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.”
Jason Moyer-Lee, the general secretary of the Independent Workers’ Union of Great Britain (IWGB) which represents workers in the so-called gig economy, welcomed the “momentous decision”.
Experts have pointed out that the decision would probably lead to a sudden increase in the number of tribunals. During the course of the case it was suggested that the number of tribunals brought since fees were introduced has dropped by as much as 70 per cent.
Paul McFarlane, chair of the Employment Lawyers Association’s legislative and policy committee and partner at Weightmans, called the result ‘dramatic’ and explained: “Once fees are scrapped it is likely that there will be a significant rise in the number of claims being brought. This will have knock-on implications for business, Acas and the employment tribunal system itself – all of whom will have to deal with the increased volume of claims.”
Head of the employment department at Trowers & Hamlins, Emma Burrows also agreed that claim numbers could increase and added: “Employers will also need to reassess their approach to risk when facing potential disputes with employees.”
