The Supreme Court has held that employment tribunal fees are unlawful in both UK and EU law
The Judgment: Employment Tribunal Fees Unlawful
The Supreme Court ruled unanimously that employment tribunal fees were “inconsistent with access to justice” They had brought about a 70% fall in the number of claims being commenced. Not only did the Court find that the fees were not affordable for those on lower incomes, but that the fall had been greatest in relation to low value claims and those claims in which a non-financial remedy was being sought, because it was no longer financially viable to bring those claims. That is, the fees had essentially denied those Claimants with an effective and financially viable remedy. The Court held that all this was not only unlawful in UK law, but also under EU law, as it breached the right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights on the basis that the employment tribunal fees unfairly limited the ability of workers to enforce their employment rights.
Furthermore, the Supreme Court held that the employment tribunal fees indirectly discriminated against women. This is because they placed women at a particular disadvantage, as they were more likely proportionately than men to have to pay the higher Type B claims fees of £1,200.00, and the Government were unable to justify this discrimination in terms of its objectives of reducing the number of vexatious claims, incentivising earlier settlement, and reducing the financial burden on the taxpayer.
The Government’s Reaction To Its Humiliating Defeat
The Ministry of Justice stated that it would take “immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid”. The amount to be refunded was estimated to be in the region of £27 million to £32 million.
A Ruling That Has Been Widely Welcomed
The Liberal Democrats were part of the Coalition Government at the time the employment tribunal fees were introduced in 2013. Jo Swinson, the current deputy leader of the Liberal Democrats, was minister for employment relations at the time. She said yesterday: “The Conservatives repeatedly blocked my requests for action to redress this in coalition, and then stuck their heads in the sand when official research on pregnancy discrimination showed how much tribunal fees are a problem. The evidence has been mounting for years that employees, including many women facing discrimination at work, have been denied access to justice because of these exorbitant fees.” Vince Cable, now leader of the Liberal Democrats, but who was Secretary of State for Business, Innovation and Skills between 2010 and 2015, stated back in 2015 that the decision to introduce employment tribunal fees was “a very bad move…….[as] the fees [were] discouraging people – particularly low paid women—from pursuing their rights“. Cable stated in that 2015 interview with The Independent, that the impact of the fees was supposed to be reviewed after a year, but that then Justice Secretary, Chris Grayling, had in “an act of remarkable bad faith” refused to carry out the review.
Dave Prentis, the general secretary of UNISON, stated: “Unscrupulous employers no longer have the upper hand. The government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work“. Frances O’Grady, general secretary of the TUC, added: “This is a massive win for working people. Too many low-paid workers couldn’t afford to uphold their rights at work, even when they have faced harassment or have been sacked unfairly. Tribunal fees have been a bonanza for bad bosses, giving them free rein to mistreat staff. Any fees paid so far should be refunded as soon as possible“.
Good employers have nothing to fear from the Supreme Courts decision. For bad employers, the balance of power has been restored to where it rightfully was prior to the introduction of employment tribunal fees back in 2013. Employees/workers again now have proper access to justice.