16 August 2017

The Supreme Court has upheld the appeal by Unison that Employment Tribunal fees are illegal.

The fees, introduced in July 2013, required a payment of between £160 and £250 to issue a claim against a former employer with an additional hearing fee being paid of £230 or £950. For a large number of people, these fees proved to be prohibitive, preventing them from being able to bring valid claims to the ET. Women in particular were disadvantaged. As a result, claims reduced by around 79%.

Some of the fees were also disproportionate – many employees were not willing to submit a claim costing £390 to recover unpaid wages - the figures simply didn’t stack up.

One of the purposes of the fees was to weed out weak or bad claims, nuisance claims that had little or no prospects of success. In fact, the fees had little impact on the proportion of successful-v-unsuccessful claims reaching Tribunal hearing, demonstrating that the same proportion of weak claims were still being pursued yet many good claims were not. The fees prevented access to justice.

With effect from the decision on 26 July 2017 Tribunal fees are no longer payable.

So what happens to those people who have paid fees from 2013 to date?

All fees will be repaid. It is estimate that this will run to around £30 million.

Most of the repayments will be relatively straightforward with fees being repaid to the Claimant. However, in some cases, the Respondent may have been ordered to pay the fee to the Claimant as part of the Tribunal’s award, or it would have been included in settlement calculations. This will need to be assessed and will add to the administrative task resulting from the Supreme Court’s decision.

Will there be a new fee structure?

Views are mixed as to whether a new fee scheme will be introduced at reduced rates. Whilst the Government are looking for the Courts and Tribunal service to pay its way, the fees introduced in 2013 covered only a small percentage. Any new fee structure would have to be assessed carefully to ensure fees are proportionate, fair and do not discriminate. In light of the current political and economic situation (and yes I do mean Brexit) the Government have quite a lot on their plate already, so even if further alternative fees are proposed, it will be a while before they are implemented.

For more information contact Dawn Gallie on 01935 846233 or