The Supreme Court ruled yesterday (26 July 2017) that tribunal fees are unlawful under both UK and EU law and are discriminatory. UNISON launched the case against the tribunal fees when they were implemented by the Government in 2013.
The ruling, described as 'momentous' has led to the existing fees regime being quashed because its effect is to prevent access to justice.
In practical terms, this means:
- fees are no longer payable for Employment Tribunal or Employment Appeal Tribunal claims;
- fees paid since 2013 are likely to be repayable by the Government - this will include cases where unsuccessful employers have been ordered to pay claimant employees' fees.
The judgment itself strongly points towards a new fee regime with either fees set at a lower level or a more generous system of remission. This will however require legislation and will take time.
In the interim we understand that where tribunal claims are being submitted by hand, tribunals are refusing payment. Electronic claims are still accepted only with payment or proof of remission but this is expected to be remedied shortly.
Another potential consequence is that time barred claims may be submitted on the basis that the unlawful fee regime made it not reasonably practicable to submit claims in time. Employers should therefore not ignore such claims but seek early advice.