28 July 2017 / by Employment/ in
“Unscrupulous employers no longer have the upper hand” – The Supreme Court allows UNISON’s appeal that fees imposed in respect of proceedings in Employment Tribunals are unlawful
The Supreme Court has allowed an appeal by trade union UNISON that Employment Tribunal fees, imposed in respect of proceedings since 2013, are unlawful and have prevented employees from obtaining justice. The decision of the seven judge Supreme Court unanimously overturns previous rulings in the High Court and Court of Appeal in favour of the Government, as well as confirming UNISON’s claims that the fees breached the EU law principle of effectiveness, creating a policy that was indirectly discriminatory.
Before the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 came into force, a claimant could bring proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying any fees. However, under the 2013 regulations, workers can be charged up to £1,200.00 for taking action against employers, creating fear that low-paid individuals would be unable to afford to seek justice.
The seven justices who heard the case noted that the fees have resulted in a substantial fall in claims being brought (a decrease of 70%) and went on to state in the judgment that in order for the courts to apply and enforce parliamentary legislation and the common law, “people must in principle have unimpeded access to them”. If there is no such access, “laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade”.
As a result of this decision, the Government will need a consultation to decide whether the fees regime will be abolished entirely or replaced by a new regime with fees at a lower level and/or involving a fee payable by the employer. The Supreme Court’s judgment also states that the Government must refund around £27 million from the Lord Chancellor’s Department to thousands of employees who have been charged since 2013 when the fees were introduced. How this will work in practice however is still to be decided, considering that many successful claims will have had fees ordered to be paid by the Respondent employer. The decision is also likely to bring into question employees who were impeded from bringing a claim as a result of the unlawful fees regime.