Over the summer, Employment Tribunal fees were abolished following the Supreme Court's decision in R (on the application of UNISON) v Lord Chancellor.
Unison argued that:
- The introduction of fees breached the fundamental principle of EU law, that legal rights must have an effective remedy, and that the fees made it impossible in practice, or excessively difficult, for claimants to enforce their rights; and
- The fees were indirectly discriminatory against claimants with particular protected characteristics under the Equality Act 2010.
The Supreme Court upheld both grounds commenting that access to the courts is a vital component of the rule of law, and noting that fees had resulted in a substantial and sustained drop in the number of claims brought.
It found that the fees were indirectly discriminatory, noting that a higher proportion of women brought discrimination claims (which attracted a higher fee) and that this caused a disproportionate impact on them. The higher fees were not objectively justified by the Government's aims of deterring unmeritorious claims and transferring some of the tribunal running costs from the public purse to claimants as they were no more effective than lower fees at achieving these aims.
Following a period of limbo the first stage of a refund scheme for employment tribunal fees was launched towards the end of October. It has since opened to everybody to apply for a refund if they paid fees in respect of a tribunal claim or appeal since fees were introduced in July 2013.
Anyone who paid a fee can apply for a refund online, or use one of the prescribed forms to apply by post or email. As well as having their original fee reduced, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.
Meanwhile the number of claims being issued is on the rise. Since the beginning of August the London Central tribunal has seen a 65% increase in claims, while other tribunal offices are reported to have had increases of 100%! We've certainly noticed an increase in claims too. This will have an effect on claims in the system as the resources of the tribunal system are already stretched.
Employers and HR departments will need to re-assess the risk profile for dealing with employment disputes. Those that would not have brought a claim before may now do so because there are no fees. We believe that will result in an increase in resourcing of employee relations advice within many employers.
Employers will also need to assess the worth of claims that are made and may now have a greater incentive to engage with the Acas early conciliation system, and employees may be more bullish in early negotiations now there is no prospect of having to pay a fee.