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Employment Tribunal Fees Supreme Court Appeal: Judgment Awaited

The Supreme Court will shortly hand down its Judgment in UNISON’s Employment Tribunal fees appeal – R (on the application of UNISON) v Lord Chancellor (2017).

The appeal was heard by the Supreme Court on the 27th and 28th March 2017. After the hearing, UNISON stated: “The government’s decision to demand a fee from anyone taking their employer to court was ill-judged, has failed to save the taxpayer money, and prevented thousands of badly treated workers from getting justice.

Up until the 29th July 2013, the Employment Tribunal service had been free. Since then, however, fees have been payable by Claimant’s and Appellants unless they are entitled to remission. This prompted UNISON to challenge the fees by way of judicial review proceedings. However, the challenge was dismissed, first in the High Court, and then in the Court of Appeal. Hence, the appeal to the Supreme Court.

It should be pointed out at this juncture that no Employment Tribunal fees are payable in Northern Ireland. They are only payable in England, Scotland, and Wales. However, under the Scotland Act 2016, responsibility for the Scottish Employment Tribunal service will pass to the Scottish Parliament. And the SNP Scottish Government has pledged to abolish Employment Tribunal fees. Once abolished in Scotland, that means that Employment Tribunal fees will only remain in England and Wales.

Both Labour and the Liberal Democrats pledged to abolish Employment Tribunal fees in England and Wales during the 2017 General Election. However, with the Conservative Party back in Government (either as a minority or with the backing of the DUP), all now hinges on the outcome of UNISON’s appeal as to whether Employment Tribunal fees will be removed in England and Wales in the near future.

There is clear evidence that Employment Tribunal fees have had an adverse impact on the ability of workers to obtain justice in the Employment Tribunal. Up until July 2013, an average of around 5000 new cases were brought every month. Since the introduction of Employment Tribunal fees, that has fallen to an average of around 1500 cases per month. That represents a 70% drop!

It was suggested at the time that the introduction of Employment Tribunal fees would deter people from bringing weak and vexatious claims. However, as the President of Employment Tribunals in England & Wales, Brian Doyle, points out:  “We do not consider that there has been a reduction in weak or unmeritorious claims. Had that been the case we would have expected the percentage of successful claims to have risen, whereas in fact it has declined slightly.” Gareth Brahams, the chair of the Employment Lawyers Association, adds: “Cases are being upheld in the same proportions as ever – there are just fewer winners and fewer losers.

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