Employment tribunal fees unlawful
The Supreme Court has unanimously ruled that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 SI 2013/1893 (the “Fees Order”) is unlawful and defies a common law right which is “deeply embedded in our constitutional law” – the right of access to justice for all.
The case was brought by Unison, the UK’s largest trade union and comes following a Ministry of Justice paper earlier this year which found that the number of employment tribunal claims had dropped 70% since the introduction of the Fees Order which introduced a new fees regime in July 2013.
Whilst the judgement is “Brexit-proof” as it relied on English law principles, the Court also found the Fees Order to be in breach of EU rights such as the right to a fair hearing under Article 6 of the European Convention on Human Rights.
Further, the Fees Order was found to be discriminatory under the Equality Act 2010 as a higher proportion of women bring “Type B” cases (such as discrimination claims) which attract higher fees than “Type A” cases. The higher fee for Type B cases therefore was found to place women at a particular disadvantage compared with men.
It is anticipated that the government will reimburse fees already paid and calls have been made for compensation to be paid to those who did not bring claims due to the fees.
A version of this article appeared in the Thomson Reuters Employment Law brief on 26th July 2017
Rebecca McCarthy is a trainee solicitor at Barker Gotelee.