08 Aug Tribunal fees scrapped

The Supreme Court has declared that employment tribunal and EAT fees are unlawful, under both domestic and EU Law, and has quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), on the basis that it prevents access to justice. The effect of this momentous decision is that all fees paid since 29 July 2013 must be reimbursed by the government, and fees are no longer payable for future claims.

The court accepted that the objectives behind the Fees Order (transferring the cost burden to users of the tribunal system, incentivising earlier settlements and discouraging weak or vexatious claims) were legitimate. However, the Lord Chancellor could not impose whatever fees he chose in order to achieve these purposes, and the fall in the number of tribunal claims since 2013 was so sharp, so substantial and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable. Where households on low to middle incomes could afford fees only by sacrificing the ordinary and reasonable expenditure for substantial periods of time, the fees could not be regarded as affordable.

The stated objective of the Fees Order did not justify the intrusion on access to justice which the court had identified. It was clear that the fees had been set at too high a level; it had not been shown that lower fees, or a more generous remission system, would have been any less effective in meeting the objective of transferring the cost burden to users.

The government has accepted the court’s ruling, and is putting in place systems for reimbursing all fees paid to date. Source: PLC on Employment Law

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