27th July 2017
UNISION's legal challenge began shortly after fees were introduced on 29 July 2013 and the final outcome of this marathon litigation shows that persistence can pay off, perhaps quite literally for UNISON which may now be able to recover tribunal fees paid on behalf of its members.
Since 2013, those wishing to issue proceedings in an employment tribunal have been required to pay a fee unless they qualify for remission. Fees have depended on the type of claim issued and stood at £350 for a Type A claim (simpler claims such as wages and holiday pay claims) and £1,200 for a Type B claim (more complex claims including unfair dismissal and discrimination).
UNISON’s challenge was based on the principle of access to justice. It argued that fees prevented many potential claimants from being able to issue tribunal claims. The Supreme Court agreed, ruling that the fees would result in hardship for claimants who may have to lower their standard of living to an unacceptable level in order to save the money needed to bring a claim in the employment tribunal.
The Supreme Court further held that fees also indirectly discriminated against women given that women were more likely to issue claims for discrimination which attracted higher fees of £1,200. This was not a proportionate means of achieving the Government's stated aims of deterring spurious claims and transferring the financial burden of the tribunal system onto its end users. This is perhaps an understandable conclusion given that there is little evidence that fees have deterred only spurious claims. In particular, whilst the number of claims issued has dropped significantly, success rates have remained broadly the same indicating that fees deter, in roughly equal numbers, those with strong and weak claims.
The Government has announced that with immediate effect fees will no longer be payable for issuing claims. In line with promises previously made by the Lord Chancellor, the Government has also renewed its commitment to repay fees which claimants have paid to date.
It remains to be seen whether the immediate abolition of fees will result in an increase in claims in the short term. If it does, we expect that an already stretched tribunal system will struggle to cope with an increased workload, potentially leading to long delays in claims being heard.
The judgment of the Supreme Court is a significant victory for UNISON. However, some commentators have suggested that rather than complete abolition, the fees regime may be reformed so that fees are lower or are based on the value (or potential value) of a claim.