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Employment tribunal and EAT fees declared unlawful

View profile for Laura Hill
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Earlier this month, the Supreme Court declared that fees charged in the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) are unlawful.

Historically, claimants wishing to make a claim to the Employment Tribunal would have to pay an issue fee and a hearing fee. The level of these fees depends on the type of claim but, for example, an issue fee for an unfair dismissal claim was £250 and the hearing fee was £950.

If a claimant wishes to instruct solicitors to assist them with their claim, the cost of legal representation is on top of the tribunal fees.

In 2015, the Ministry of Justice (MOJ) commenced a review of the impact of employment tribunal fees and considered the Justice Committee recommendations that there should be a substantial reduction to the level of employment tribunal fees because the level of fees currently being charged had a detrimental impact on access to justice. However, the MOJ concluded in their report (known as the Fees Order) that the fees’ regime was meeting the “original financial, behavioural and access to justice objectives” for the introduction of fees.

Unison (the public sector trade union) sought to challenge the MOJ’s Fees Order by Judicial Review, primarily on the ground that the fees prevented access to justice.

Unison was successful in its appeal and the Supreme Court held that the MOJ’s Fees Order does prevent access to justice and ruled that fees will no longer be payable for any claims brought in the future and that all ET and EAT fees paid since 2013 need to be reimbursed.

While the court found that charging fees does effectively prevent access to justice, it also acknowledged that the purpose behind charging fees was reasonable. By charging a fee, it deters claimants from making frivolous claims or claims with no merit to simply cause problems for their past employers.

In addition, it makes sense to transfer some of the costs of running the employment tribunals to claimants (the users of the system), however, the court did not feel this was justified if charging fees would put off potential claimants bringing legitimate claims.

The weight the court put on removing barriers to access to justice means that this decision is likely to have a huge impact on employment claims going forwards. The courts’ willingness to get involved in matters where access to justice is reduced, means that the impact of the judgment could be felt in many aspects of the legal system and the ramifications are likely to go far beyond employment law.

How reimbursing such a large amount of fees will actually work in practice (estimates put the figure of the fees which have been paid since 2013 at around £32 million) is unclear at this stage, however, the Government is no longer taking fees for issuing claims.

It is likely that there will be an increase in the number of claims being made and only time will tell how the tribunal system will deal with the sudden increase.

It is also important to note that it remains to be seen whether tribunal fees will actually be scrapped permanently or whether the Government will consider implementing another system which still requires users to contribute in some way.