It is now 4 years since tribunal fees were introduced in the employment and employment appeals tribunal (previously there was no charge). The Government’s aim was to transfer part of the running costs of the tribunals to users; to discourage weak and malicious claims; and to encourage the use of alternative methods of dispute resolution. The result was a huge reduction in the number of claims – a 79% reduction.
Claimants are currently required to pay a fee to lodge a claim, and then a further fee at the tribunal hearing, and claims fall into two categories, “Type A” (the simple claims), and Type B claims (the more complicated ones, including unfair dismissal, equal pay and discrimination claims).
The fees for single applicants are as follows (although a remission scheme applies to those with lower disposable capital):
• Type A claims: issue fee of £160; hearing fee of £230 – total £390
• Type B claims: issue fee of £250; hearing fee of £950 – total £1200
• Appeals to the Employment Appeal Tribunal: issue fee of £400; hearing fee of £1200 – total £1600
Ever since plans to introduce the fees were announced, the union UNISON has been challenging their fairness, saying that they prevented access to justice, frustrate the operation of employment legislation and were also discriminatory against women (who bring a higher proportion of type B claims). The High Court rejected UNISON’s challenge, as did a fresh judicial review in 2014, and then the Court of Appeal in 2015 but UNISON did not give up, and took its challenge to the final stage – the Supreme Court – back in March this year. It has just been announced that the Supreme Court has ruled that the Fees Order is unlawful because it prevents access to justice (the fees are set at a level which acts as a deterrent to small value claims, and were not affordable by those on low to middle incomes), and they also were ruled to be indirectly discriminatory to women.
There are suggestions that the Government will now have to repay up to £32m to claimants – the Lord Chancellor previously gave an undertaking that any tribunal fees paid would be refunded (with interest) if, after a full hearing, the fees regime was held to be unlawful.
Unison general secretary Dave Prentis said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”