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Employment Tribunal Fees Illegal – Where to Next?

The Supreme Court has held today, 26th July 2017, that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which saw the introduction of fees to the Employment Tribunal and led to a 70% reduction in claims) is unlawful and will be quashed.

This brings the long running case of R (on the application of UNISON) v Lord Chancellor to a conclusion.  The challenge was raised in July 2013 when it was feared that the introduction of fees, and fees at the proposed level, would limit access to the Employment Tribunal.  Challenges were raised both in Scotland and in England and Wales against the introduction of the fee regime, during which the Lord Chancellor gave an undertaking that if the Fees Order was ultimately to be ruled unlawful, that any fees paid under the Fees Order would be reimbursed.  That decision was finally given today. 

The Supreme Court has now confirmed that that the Fees Order does effectively prevent access to justice, and that it imposed unjustified limitations on the ability to enforce EU rights (ie those claims based on EU law), and so, the Fees Order was unlawful under EU law.

Where do we go from here? 

Firstly, we are unlikely to see the end of a “fee regime”, rather it is likely that the government will consult on a more suitable level of fee structure, which may or may not be adopted by the Scottish Employment Tribunals once authority over the “northern jurisdiction” is ultimately devolved.  Secondly, the Employment Tribunal Rules will require adjustment to account for the alteration in the fee paying requirement, as will the administrative system handling the submission of claims.  In addition, the Lord Chancellor will face a mammoth task in determining who ought to receive a refund of the fees paid, bearing in mind that many fees may have been ordered to have been repaid to the Claimant Employee by the Respondent Employer. 

Lastly, the Employment Tribunal may also face the challenge being asked to determine whether it may be “just and equitable” to allow a claim which was not pursued at the time due to the imposition of fees should be allowed late, or whether it was not “reasonably practicable” for the Claimant to submit a claim in time due to the imposition of fees.  Time will only tell whether or not such arguments may be successful, and how this will impact upon the capacity of the Employment Tribunal. 

For more information please contact Nicola Gray or Martin Sinclair, or call 01224 632464.



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