Supreme Court quashes Employment Tribunal fees

26 July, 2017
by: Cripps Pemberton Greenish

In its judgment today, the Supreme Court held that payment of fees under a 2013 Order for bringing a claim before an Employment Tribunal prevented access to justice, as well as being indirectly discriminatory and contrary to EU law. 

The main drivers behind the introduction of fees by the Government in 2013 was that the cost burden should shift from the taxpayer to the claimant, whilst encouraging parties to think more carefully about alternative options before making a claim. A 70% reduction in claims followed.

In finding that access to justice had been impeded, the Court compared the fees to those applied to small claims in the County Court. Fees in the Employment Tribunal are set according to the complexity of the claim. Type A claims cost £390, being generally of lesser value and complexity (such as unpaid wages claims), whereas type B claims cost £1,200 (for example unfair dismissal, equal pay and discrimination claims).

In small claims cases in the County Court the fee depends solely on the value of the claim. In contrast, the Court held that the fee structure for Employment Tribunal claims effectively deters bringing claims with small values, as a flat fee is charged regardless of the value of the claim, with complex cases charged a further premium.

Furthermore, the Court held that protection of employment rights through recourse to a system of adjudication was important not just for the individuals concerned, but for society as a whole.

In a brief, separate judgment, Lady Hale concluded that the higher fees regime applicable for type B claims (which include discrimination claims) were indirectly discriminatory, as it had a disparate impact on women and others with protected characteristics.

Next steps

A consultation and revised fees regime can be expected shortly, with a laborious exercise to follow in order to refund all fees paid between 2013 and now.

It is unlikely that the fees will disappear completely and we will provide an update once we know more.