Employment Tribunal Fees following R (Unison) v Lord Chancellor (2017)

On 26 July 2017, the Supreme Court in the case of R (Unison) v Lord Chancellor (2017), found that court fees in regards to proceedings at the Employment Tribunal and at the Employment Appeal Tribunal (both together known as the “Tribunals”) are unlawful and prevent access to justice.

This means that all fees for these proceedings cease to be payable and any fees paid in the past to the Tribunals must be reimbursed by the government.

In this case, Unison sought a judicial review of the fees that were originally imposed by the Tribunals in 2013 on the grounds that these fees unlawfully prevented or restricted access to justice. The Supreme Court decided that there was a real risk that persons will effectively be prevented from having access to justice; and the degree of intrusion is greater than is justified by the objectives which the measure is intended to serve in regards to the fees imposed by the Tribunals.

It was established that the fees were, in their current form, not set at a level that everyone could afford, with some fees for the Tribunals being up to £1,600. The Supreme Court concluded that a significant amount of people would have otherwise brought claims to the Tribunals, but for the unaffordability of the fees.

Interestingly, the Supreme Court also found that these fees breached the European Union’s principles of effectiveness and effective judicial protection. It was concluded the fees imposed disproportionate restrictions for the purposes of European Union Law which effectively means the fees were in breach of both United Kingdom and European Union Law.

What Next?

The Tribunals have confirmed that fees in the amount of £32 Million will be reimbursed to claimants. On 15 November 2017, the full scheme of refunding individuals for their fees opened up following a four week opening scheme. As well as being refunded their original fee, successful applications from claimants to the opening scheme will also be paid interest of 0.5% calculated from the date of the original payment up until the refund date.

Logic dictates that the number of claims in the Tribunals now and in the future, will increase due to the fees barrier being lifted for claimants. This could mean the Tribunals become overburdened with proceedings and the government is forced to create new legislation where fees are met by employers. In this period of economic uncertainty and potential job losses, the government will be keeping a close eye on the amount of claimants in the Tribunals in the coming years in order to strike a balance between maintaining the Supreme Court’s judgement in R (Unison) v Lord Chancellor (2017) and the Tribunals becoming overburdened with claimants.

We have a team of specialists who can provide guidance and advice on reclaiming Employment Tribunal and the Employment Appeals Tribunal fees. To speak to a member of our employment team simply get in touch with us by using the contact form on this page or calling on 02031918080