A ground-breaking decision from the UK’s top court, which is forecasted to be the most significant judgment in UK employment law in the last fifty years, was announced this week.
The ruling means that the tribunal fees introduced in 2013 are now illegal and importantly, those who have already paid the fees over the last four years, will have to be reimbursed.
The introduction of tribunal fees back in 2013 resulted in a 70 percent reduction in claims being brought, which led to criticism that those who needed the protection of the free Employment Tribunal service the most, namely those on low to middle incomes, were at real risk of being prevented access to justice.
In fact, there have been years of legal challenges by Unison, one of the UK’s largest trade unions, who brought actions claiming that Employment Tribunal fees prevented access to justice for claimants because they could not afford the fees.
This week, the Supreme Court agreed unanimously that the current system of tribunal fees effectively prevented access to justice, and was therefore unlawful.
Additionally, the court ruling found that, because a higher fee was payable for discrimination claims, the fees also indirectly discriminated against women given that a higher proportion of women brought discrimination claims.
Most notably, this has had an adverse impact on women alleging maternity or pregnancy discrimination. The Supreme Court’s unanimous decision was that the fees were not justified, and they concluded that worthy claims had been deterred by the higher fee.
What does this new ruling mean?
• Be on guard: expect more employees to issue Employment Tribunal claims, and pursue them to final hearings, over the coming months and years.
• Following a fair process and treating employees fairly in all workplace disputes is now more imperative than ever, given the anticipated surge in claims.
• Expect stronger negotiations when dealing with employees exits in light of the greater risk of Employment Tribunal claims.
• There could be an opportunity to reclaim any previous tribunal fees paid if you have been unsuccessful at a hearing in the last 4 four years.
• You no longer have to pay Employment Tribunal fees.
• You have more access to the courts to hear your employment claims.
• You can claim back your tribunal fees if you paid these since 2013.
• You may be able to pursue a claim out of time if you were previously prevented from bringing a claim because of the fees.
What is going to happen now?
The truth is no one really knows yet. This decision is monumental, and the effect it will have on the UK employment law could be far-reaching.
We can safely predict that there will be a significant increase in Employment Tribunal claims, and handling this increase and the back-log of claims for individuals who have already paid the unlawful fees could cause significant complications.
In order to manage the reimbursement of claims, we predict that there could be a cap imposed and a limitation introduced.
The added complication is for those individuals who never brought a Tribunal claim because of the fees imposed. Identifying those people and dealing with their claim will be new to this area of law, and handling these issues is likely to reveal many new challenges.
As Dave Prentis, general secretary of Unison, said: “We’ll never know how many people missed out because they couldn’t afford the expense of fees.”
Lauren Harkin is a partner at Royds Withy King in Swindon. Contact her on 01793 847 720.