The government has been forced into a humiliating and costly overhaul of employment tribunal fees after the Supreme Court ruled on Wednesday that they were “inconsistent with access to justice” and breached both EU and UK law.
The Ministry of Justice will now have to repay £27m to thousands of individuals in what has been called “a major victory for workers everywhere”.
Michael Farrelly, employment lawyer at Excello Law, has examined the Supreme Court decision and considers its ramifications to UK employment law and in particular the ability of individuals to pursue their rights.
First introduced in 2013, the controversial tribunal fees ranged from £390 to £1,200. They sought to deter unmeritorious claims and ensure users contribute to the costs of court services. The fees discouraged claims but not just unmeritorious claims and the proportion of such claims remained similar.
Defeated in the lower courts before being brought to the Supreme Court by trade union Unison, one key factor was Unison’s emphasis on how the fees deterred people from submitting new cases. Michael will consider the ethics of insisting users contribute to the costs of court services and argue tribunal fees disable low paid workers’ ability to uphold their rights at work.
As a result of the decision, some now fear an overwhelming flood of new employment cases including unfair dismissal, discrimination and equal pay. Michael will argue that the increase in tribunal cases is not something to be feared, rather it is something to welcome, concluding that the removal of tribunal fees is an encouragement of the unquantifiable value of difference, diversity, and the equal access to justice for all workers; fees should not discourage workers to seek help and justice and their removal will achieve this aim. Unscrupulous employers will no longer be able to rely on the “fee deterrent” whereas weak claims will still be subject to a sift by an employment judge and ACAS early conciliation.