Employment tribunal fees are unlawful, Supreme Court says

“It’s the biggest victory in a court in British employment history,” according to Unison’s Dave Prentis. And it’s an incredible, momentous, stunning win say employment lawyers, as they react to the Supreme Court’s decision that employment tribunal fees are unlawful.

In what is being described as a hugely well-deserved win for Unison, the Supreme Court found that fees prevented workers getting access to justice. It also found that fees were indirectly discriminatory to women. It says the government was acting unlawfully and unconstitutionally when it introduced the fees.

The government will now have to refund more than £27m to the thousands of people charged for taking claims to tribunals since July 2013, when fees were introduced by Chris Grayling, the then Lord Chancellor.

Anyone in England, Scotland and Wales wanting to pursue a case against their employer has had to find as much as £1,200. This has been a huge expense for many low-paid employees.

Unison general secretary Dave Prentis says:

“This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

The Equality and Human Rights Commission provided expert independent legal arguments during the case. Following the introduction of employment tribunal fees, discrimination cases on the grounds of sex, disability and race, as well as equal pay claims, all fell by around 50% in 2016 to 2017 compared to the last year before fees.

Pregnancy and maternity discrimination claims have also fallen by 45%. In addition to the barrier of fees, the short time limit of 3 months to bring a case blocks women who are coping with the pressures of new motherhood from accessing justice.

Equality and Human Rights Commission Chair, David Isaac says:

“Women face a double penalty with high fees and short time scales to bring maternity discrimination cases. The time limit should be extended to 6 months rather than new mothers having the added pressure of having to rush to make a claim.”

Employment lawyers say they were emotional, overwhelmed and absolutely delighted with the result, as the fees had denied access to justice. Lawyers were also quick to congratulate Unison and the Equality and Human Rights Commission, which had worked so hard on the case.

Christopher Braganza, a Partner in the Employment and Business Immigration Group at Sheridans says:

“The MoJ was in effect trying to say that, from summer 2013, employers suddenly began treating employees 70% better. The Supreme Court has disagreed.

“I don’t think that claim levels are likely to get back to pre-fees levels, due largely to the excellent ACAS pre-claim conciliation scheme. However, whichever way you look at it, getting rid of fees of £1,200 for a simple unfair dismissal claim is a victory for access to justice. Many politicians are keen to emphasise how they’re going to help the less fortunate or the ‘just about managing’. The Supreme Court has, perhaps, done more today for working people than anyone else in the last 10 years. Many congratulations to UNISON, and to those who have pursued this claim with such tenacity.”

Michael Burd, Chair of the Partnership and Partner in the Employment, Immigration and Reward department at Lewis Silkin, says:

“This momentous judgment will have lasting significance far beyond the world of employment law. It is a powerful and resounding reaffirmation of the importance of the rule of law in society and the constitutional right of unimpeded access to the courts. The SC relied upon historic authorities and sources in reaching its decision, even including words from the Magna Carta of 1215: “We will sell to no man, we will not deny to any man either Justice or Right”.

“The SC judgment will also inevitably have immediate political ramifications, given that Labour’s manifesto for the general election pledged the abolition of ET fees, whereas the Conservatives were silent on the matter. The Government will now have to decide whether to develop proposals for a new ET fees regime that could be defended before the courts as being compliant with proper access to justice. This will no doubt take some time and a consultation document is likely to be published in due course.

“Pending that process, an immediate consequence of the SC’s judgment is that fees are for the time being no longer payable, either for bringing an ET claim or appealing to the EAT and in addition, it has been reported that the MOJ has made a commitment immediately to begin the process of reimbursing ET claimants, dating back to 2013.

“Finally, it is very likely that some would-be claimants from the past, who were deterred from pursuing an ET claim at the time by the obligation to pay a fee, will now seek to bring their claims out of time.

“Whether ETs will be prepared to allow this will depend on the type of claim and the claimant’s particular circumstances. For example, with an unfair dismissal claim, the issue would be whether it was “not reasonably practicable” to bring a claim within the time limit on account of the fees regime. In contrast, in a discrimination case, the test would be more flexible – whether it is now “just and equitable” to extend time to bring the claim.”

Abigail Trencher, a Partner in the Employment Team at Birketts LLP, says:

“This is a truly historic judgment. There cannot be many legal systems whose judgments are based on individual rights and freedoms that date back to the early 13th Century, and I am proud to be part of such a system where our courts are able to uphold such rights and freedoms.

“It will be interesting to see what steps the Government takes to replace the current system, assuming it still wants to pursue the aim of transferring the costs of the Employment Tribunal system from the tax payer to the service user, in part if not completely.  However, it will take time to devise another system or find a level of fees under the existing one which satisfies the key test of not preventing access to justice, and resources are likely to be thin on the ground as all Government departments deal with Brexit.  I think it is likely to be some time therefore before a new system, or alternative fees, are introduced.

“The cost the Government will have incurred in putting in place the current system to accept fees and deal with remission applications, on top of the estimated £32 million it will need to refund to previous fee payers, must be enormous and make it critical the Government ensures any replacement system or fee structure is beyond challenge next time around.  One hopes this very expensive lesson may make future Governments reluctant to rely on secondary legislation to implement bold changes to the employment law landscape – which may provide some reassurance as we move towards Brexit and the concern at the extent to which future Governments may rely on secondary legislation to implement changes to employment legislation following the Great Repeal Bill.

“Finally – what implications may this judgment have for the civil courts and the huge fee hikes that have been introduced in recent years? Lord Reed’s comment at paragraph 87 must be pertinent : “The Lord Chancellor cannot, however, lawfully impose what fees he chooses in order to achieve these purposes. It follows that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice”.

Dominic Holmes, Partner at Taylor Vinters, says:

“In my view, the Supreme Court was right to decide that the current Employment Tribunal fees regime is unlawful.

“One of the reasons for introducing fees was to deter claims with little or no merit, but there is no evidence that only stronger claims are now being pursued.  It is worth remembering that Employment Judges have plenty of tools at their disposal to manage weak claims robustly, once they are in the Tribunal system.

“For example, claims with no reasonable prospect of success can be dismissed at an early stage as part of an initial sift process, without placing undue pressure on resources or forcing employers to incur significant unnecessary costs. Claimants can also be required to pay a deposit into court to continue their claims and the Tribunal has discretion to award costs in appropriate cases.

“These powers can (and should) be used more often to ensure that employers have appropriate protection from vexatious litigants, without impeding access to justice for claimants who have an arguable case.

“Employers will understandably be concerned that this decision will result in more claims, which in turn means more cost and management time spent in defending them.  The focus now should be on providing an efficient Tribunal system that embraces technology and delivers speedy, cost-effective resolution of employment disputes.”

Paul McFarlane, a Partner at Weightmans LLP, says:

“This is a dramatic and largely unexpected ruling with potentially far-reaching implications for UK businesses.

“The effect of this decision is that, at least in the short term, access to the employment tribunal is once again free of charge. It will therefore be more important than ever for employers to have robust policies and procedures in place and follow those fair procedures to promote workplace resolution and also best manage the risk of litigation.

“By most measures there has been a significant reduction of between 60- 70% in ET claims since 2013.  Employers will be concerned that in due course they may have to deal with a significant increase in claims, with the increase in management time and costs required to deal with these extra claims.  This may mean that employers could have less time or resource to devote to using other means to resolve internal disputes, such as mediation.

“There may also be implications for ACAS – who are required to provide early conciliation – and the tribunal system itself, as both will need extra resources to deal with a significant increase in claims.

“Legal practices will also need to consider if they have capacity to deal with any significant increase in claims once ET fees are scrapped.

“Whatever your view on fees, it is essential, and of benefit to employees and their employers alike, that the rule of law and access to justice is protected.

“Although relatively short-lived, the fees have changed how employers, employees and lawyers think about tribunal litigation.  It remains to be seen what the employment law landscape will look like post-fees, but we may still find it somewhat different to life before the charging regime was introduced.”

Louise Maynard, Associate at Springhouse Solicitors, says:

“Ironically, one of the reasons for the government imposing tribunal fees in 2013 was to encourage potential Claimant’s to engage in meaningful settlement negotiations under acas early conciliation (a pre-cursor to commencing a tribunal claim).  In practice, the tribunal fees payable solely by the Claimant did nothing to encourage employers to engage in meaningful settlement negotiations under acas early conciliation.  Today’s decision by the Supreme Court that Tribunal Fees are unlawful, making the tribunals more accessible to Claimants, may encourage errant employers to take acas early conciliation more seriously, especially as Tribunal Judgments are now available online to the public”.

Guy Bredenkamp, Partner in the Employment & Pensions Group at DAC Beachcroft LLP, says:

“Make no mistake: this is a ruling that will send shockwaves around those working in the field of employment rights.  Under legislation implemented in 2013, claimants have had to pay fees of several hundred pounds to pursue claims in employment tribunals, unless they qualify for means-tested remission from the fees regime. Prior to that, access to employment tribunals was free of charge. The imposition of fees resulted in a dramatic decline (almost 70%) in the number of tribunal claims submitted each year and a particularly marked decline in lower-value discrimination claims. However, the Supreme Court has ruled that fees under the current regime are not set at an affordable level and effectively prevent access to justice in employment tribunals. For that reason, the current fee regime is unlawful. The Court went on to rule that the fees regime is also disproportionate and therefore unlawful under EU law, which underpins many employment rights in the UK.

“It remains to be seen what the full practical effect of this dramatic ruling will be. The Supreme Court has quashed the 2013 Fees Order, meaning that claimants in employment tribunal cases cannot now be required to pay fees. It has been agreed that any fees paid by claimants since 2013 will be refunded, which will place an enormous administrative burden on the employment tribunal system. Clearly, the government will now have to think about whether any fee regime would be lawful in the light of this clear and unanimous judgment by the Supreme Court.”

Alan Lewis, Principal Lawyer and Head of Commercial Division & Employment at Linder Myers, says:

“There will inevitably be an increase in claims to the Employment Tribunal, as the introduction of fees corresponded with a very dramatic reduction in Employment Tribunal claims. This is bound to increase pressure on Employment Tribunals as I suspect the Tribunals are not presently sufficiently resourced to deal with a significant increase in the volume of claims.  Many employers’ strategy in dealing with ACAS early conciliation is likely to change.

“There has been a tendency for employers to adopt a “let’s wait and see whether the employee puts their money where their mouth is” approach, rather than to actively engage in conciliation at a pre-claim stage.  Given there will undoubtedly be a higher risk of an employee bringing a claim there ought to be an increased tendency by employers to actively engage in the ACAS early conciliation process going forward.

“It has now been determined that, with immediate effect, fees are no longer payable for claims before the Employment Tribunal.  Tribunals have been told not to accept fees when claimants lodge claims at designated Employment Tribunal offices.  All fees which were paid in the past must be reimbursed.”

Stephen Poyner, Partner and head of employment at FDR, says:

“The decision by the Supreme Court came as a surprise to many HR lawyers and professionals. The Court overturned the decisions of both the High Court and Court of Appeal and decided that Employment Tribunal fees were unlawful since they had not been introduced by a full Act of Parliament and because they were also discriminatory to the extent they imposed higher fees for certain claims which women were more likely to bring than men.

“Given the huge reduction in claims since fees were first introduced back into 2013, there is now every expectation that we will see a significant increase in the number of Tribunal claims issued in the months ahead .The removal of the financial obstacle for Claimants means Employers would be well advised to revisit their current HR policies and procedures and in some cases a more risk based, cautious approach to managing employment disputes may be warranted.”

Clare Gilroy-Scott, Partner in the employment team at Goodman Derrick, says:

“There is no doubt that this is a landmark judgment for all workers and employees”

“Perhaps the greatest impact will be for so-called gig economy workers – the Uber drivers, CitySprint couriers etc – who work on flexible, casual and intermittent bases. Many of whom are workers but, as we have seen from recent tribunal judgments, have been denied holiday pay or not been paid the national minimum wage.  For these workers, who do not have guaranteed work or protection from unfair dismissal, bringing claims was risky enough, without the further barrier of a tribunal fee which may have exceeded the value of their actual claim.”

“Businesses engaging people on  flexible “gig” models may find that they face an increase in claims if they are incorrectly treating workers as self-employed and do not provide them with their entitlements to the national minimum wage and holiday pay.”

“For workers with relatively low value unlawful deductions from wages or holiday pay claims, for example, the fees were a significant impediment.  This is no longer the case.”

Nicholas Robertson, Head of Employment in London at Mayer Brown, says:

“This is a stunning victory for Unison and easily the most significant employment case for many years.  In short the tribunal fees system has been declared unlawful from the date it was created and so is now quashed with immediate effect.

“Claimants who are issuing claims from today onwards will not have to pay any fees to do so, since the Tribunals have power to charge fees.  Claimants who have issued and paid fees will be entitled to have these repaid to them by the State, because the Government undertook to repay such fees if the legal challenge was successful.  Employers who have had to pay fees  to a Claimant following the loss of an Employment Tribunal case may be able to claim the cost of those fees back too (although that is less clear cut).

“It remains to be seen if Tribunal claims will return to the levels before the introduction of the fees regime. My view is that they will not return to those levels because the ACAS mandatory conciliation scheme will continue to encourage parties to settle claims before litigation.  Now that the fees regime for Employment Tribunals has gone, I suspect employers will be more likely to settle at the ACAS stage, rather than waiting to see if Claimants follow through and issue a claim.”

Emma Hamnett of Clarke Willmott LLP, says:

“The aim of the Fee Order was to transfer some of the cost burden of the Employment Tribunal system from general taxpayers to actual users of the system.  However the Court has today held that the effect of fees was to prevent access to justice and therefore the fees were unlawful.

“The Court noted a dramatic and persistent fall in the number of claims brought in the Employment Tribunals with fees being the most frequently cited reason for not submitting a claim. The Court also held that the payment of fees was indirectly discriminatory for those individuals bringing claims to protect characteristics such as age, disability, race and sex.     The decision, which is effective immediately, is being heralded as a victory for “workers and common sense” and provides clear statements on the importance of the rule of law and the constitutional right to access to justice. It’s a good news day for workers who faced these fees at a financially vulnerable time having just lost their job.  However, employers will now see a rise in the number of Tribunal claims threatened and then brought and a return to a more litigious working culture.”

Joe Aiston, senior associate in the Employment, Pensions & Mobility group at international law firm Taylor Wessing, says:

“This is a huge decision both legally and politically and one of the strongest examples of the court system being willing to limit the government’s power to legislate. The Supreme Court has upheld Unison’s challenge to the Tribunal Fees regime on both major strands of the argument; that fees prevent access to justice and the way the fees are structured are discriminatory against women. The Lord Chancellor has also confirmed that fees already paid are to be reimbursed. As well as having a massive effect on tribunal process and claimants’ ability to bring claims, this will also result in a significant hit on the court system’s coffers.”

Ian Carey, director at Careys Law Ltd, says:

“The introduction of Employment Tribunal fees in 2013 was a controversial move and had a serious impact on access to justice with a 70% reduction in Tribunal claims. Today’s judgment from the Supreme Court recognises the importance of the rule of law and that statutory rights should not be adversely affected by a Fees Order introduced by a minister.

“The conclusion that the Fees Order was unlawful under both English and EU law (because it had the effect of preventing access to justice) means that it was unlawful when it commenced and therefore must be quashed. The mammoth task of arranging refunds of fees paid by claimants since 2013 is likely to take some time because of the fact that some fees in successful claims would have been ordered to have been paid by respondents and so it isn’t just a question of simply arranging refunds of fees paid by claimants.

“I don’t believe we have heard the last of fees being charged for Employment Tribunal claims although I anticipate the government will inevitably take some time before introducing a new costs regime.”

Aida Smajlovic, employment solicitor at Gelbergs LLP says:

 I am hopeful that this judgment results in positive changes to the tribunal fees regime. As practitioners we have all seen a rapid decline in the number of people bringing claims; I myself have had clients walk away from good cases because they couldn’t afford the fees and did not qualify for remission. My main concern now is for those people who couldn’t issue their claims at the time because of the barrier of the fees, and who are well out of time to present a claim now. Whilst those who presented claims may receive refunds, what remedy is available to those who were denied justice in the first place?”

Rachel Suff, employment relations adviser at the CIPD, the professional body for HR and people development, says:

“The judgement signals a welcome end to the current tribunal fee system. Given the staggering drop in claims since tribunal fees were introduced in 2013, it’s clear that the fees were denying access to justice for many people. Sadly, this suggests that some perfectly valid claims have never been heard.

“If we are to build more open, inclusive and tolerant workplaces then workers have to have the ability to enforce their employment rights and challenge discrimination.”

Claire Dawson, head of employment at Slater and Gordon, says:

“This is a great outcome for employees and workers who have in recent years been discouraged from pursuing potentially viable claims because of the fees payable.

“An employee who has been just been dismissed is worried about meeting daily living expenses, household bills, rent or mortgage and the prospect of a £1,200 fee to go to an Employment Tribunal is a barrier to them accessing justice.  The Supreme Court has recognised that in their judgment.  They also recognised that fees have had a discriminatory impact on women because they are more likely to bring claims for a discriminatory dismissal – especially for pregnancy or maternity related reasons.”

Carolyn Brown, employment lawyer and head of RSM client legal services says:

“This is a major success for Unison in its long running campaign to overturn this barrier to access to justice widely recognised by all except the Government’s own Review earlier this year. Matthew Taylor referenced this challenge in his Review published this month by suggesting that status assessments by Tribunals should be decided as preliminary issues and not attract fees.

“Since the Government in its recent Brexit factsheet again repeated its intention to maintain workers rights presumably they will act quickly to ensure practical steps are taken to open up the Tribunals again to claimants.”

Christina Tolvas-Vincent, a Partner at Bond Dickinson says:

“The Supreme Court unanimously allowed Unison’s appeal, finding that the Fees Order was unlawful under domestic and EU law because it prevented access to justice.  It must therefore be quashed.  The Supreme Court pointed out that fees bear no relation to the value of the claim and therefore act as a deterrent to claims for small amounts of money or non-monetary remedies.  The evidence showed that the effect of the Fees Order was a dramatic fall in the number of claims and it contravened the EU law guarantee of an effective remedy before an ET.  It was also indirectly discriminatory because the higher fees for discrimination claims put women at a particular disadvantage.  This is because a higher proportion of women bring these claims than claims that attract lower ET fees.

“The Lord Chancellor previously gave an undertaking to repay all ET fees paid since 2013 if the Fees Order was found to be unlawful and the Government will need to set up a system for repayment.  It is unclear what will happen where a claimant was successful in the ET and the respondent employer reimbursed the fees.  We are likely to see an increase in ET claims, as fees will have to be abolished with immediate effect, and the Government will presumably now give some thought as to how it can implement a lawful scheme for ET fees, perhaps by introducing a scale of fees linked to the value of claims.”

Emma Webster, Joint CEO and Senior Solicitor at YESS Law, says:

“This is a huge step towards addressing the fact that thousands of employees have been denied access to justice since the fees were introduced. Although legal aid has long been almost entirely absent from employment tribunals, the introduction of fees saw low level claims such as unpaid wages claims, almost entirely disappear. It was the vulnerable employees that were hindered by the fees.

“Many employees, particularly those in low paid work or women about to return to work after a year on very low maternity pay, simply couldn’t challenge the actions of their employers. At YESS over 50% of our female clients have been treated badly because they are on maternity leave or pregnant. The fees were an additional barrier for them at a time of huge turmoil and uncertainty. Paying the fees was yet another risk they had to take when they had just lost their job and had a new baby to look after and provide for.

“At YESS we do not see the tribunal system as the solution to most employment problems with or without fees. It will still be immensely stressful, time consuming and lawyers’ fees will still be high. However, under the fees regime, many employers (particularly small ones), regardless of the strength of the claims against them, would refuse to negotiate until the employee had issued a claim. They could literally just get away with it. Many employees simply couldn’t risk the fee and the fee remission system was complex and difficult to navigate.

“YESS hopes that the removal of fees will see the tribunals return to a situation where individuals can directly access justice without their financial situation being counted against them. But perhaps more importantly it will mean that employers no longer think they can just get away with treating their employees badly. It is quite likely that the government will try to install a different fees system at some point but at a time of Brexit, who knows when they will find time!”

Jodie Hill, employment solicitor at Lionshead Law, says:

“The three desirable reasons for introducing fees were to reduce tax payers costs, provide an incentive for claimants to settle earlier to avoid fees and to disincentivise vexatious and weak claims.

“In my view, the fees do not on the face of it appear to have had the desired effect.  Lady Hale and Lord Neuberger clearly identify how the fee regime is unaffordable for many low to middle income families. It is also worth noting that most people wanting to issue proceedings are unemployed and often vulnerable due to mental health issues or pregnancy and maternity leave meaning they have revived a much lower income for a significant amount of time and when it comes to deciding to issue a claim simply cannot justify spending their last bit of savings on a claim which is often protracted, stressful and time consuming with no guarantee they will win or settle.

“Those claimants who are successful in tribunal often do not see their award, despite enforceability options available to them. To the contrary there are no fees to defend the claim, employers often have HR advisors and lawyers back by insurance and hope the claimant will simply not be able to afford the hearing fee.  This places employers in a stronger position when there are disputes over holiday pay and final salary as they know the cost of pursuing their employer outweighs the value of their claim and the time it will take to recover the same.

“This is an incredible and momentous victory, one of the most important in the history of employment law rights here in the UK.”

Tim Goodwin, Associate at Winckworth Sherwood, says:

“The introduction of fees for Claimants in the Employment Tribunals has had an enormous, deleterious effect on working people’s access to justice.  Employees have to stump up fees of up to £1,200 to bring their claims, often for relatively modest sums.

“This has seen, in some areas, Tribunal claims fall by up to 80%.  My experience has been that, far from dissuading workers from bringing hopeless cases, the fees have discouraged genuine litigants from pursuing their rights simply on the basis that they cannot afford to pursuing their employer.  This is reflected in the rate of claims that are won at Tribunal – which has fallen, as a proportion of all cases brought, suggesting that fewer meritorious claims are getting through.

“The Government’s response has been lukewarm.  After a much delayed review of the fees, we have seen no indication from the Government that it is prepared to rethink its policy, even in the face of overwhelming evidence and critical committee responses.

“Today’s judgment is therefore a real victory for those campaigning against fees.  The Supreme Court has determined that the orders issued by Government ministers imposing fees exceeded the power that those ministers were given under the relevant Act of Parliament – so that order was unlawful.  The Court has also unanimously held that the fees have acted as a barrier to accessing justice and are indirectly discriminatory.  This will force the Government to go back to the drawing board and think about how it can better fund the Tribunal system without cutting off employees’ access to justice.”

Alan Lewis, an employment partner at national law firm Irwin Mitchell said:

“There will now be huge ramifications for the government, particularly because at the outset of Unison’s challenge, the Lord Chancellor agreed to repay all Employment Tribunal fees if the union was successful.  It will take a while for the fee system to unravel and although technically no further fees are payable, in practice, the system has been set up so that claimants cannot actually issue their claim unless they have paid the fee or applied for remission.

“It is also extremely likely to result in an increase in the numbers of Employment Tribunal claims brought – although this might amount to a steady trickle to start with rather than a huge and immediate increase.

“One interesting point is whether employers who have been ordered to repay fees will also be able to recover their money.  If the Lord Chancellor repays the claimant, he or she will then have to repay their ex employer.  It will be interesting to see how this will be enforced and whether employers will bother to enforce it if the claimant keeps the money.”

Suzanne Horne, head of the international employment practice at Paul Hastings, says:

“This is an incredibly significant decision for employers but just how momentous the fallout will be remains to be seen. Before all else, the government will be obliged to pay back all fees obtained since 2013. However, this may be just the tip of the iceberg as lower paid potential claimants, turned off previously by exorbitant Tribunal fees, enter the fray with union backing. Fundamentally, though, it is still unclear whether those who did not bring a claim in the last three years because of the fees will be able to submit a claim given that most will be out of time.

“Tribunal fees have long since been described as preventing access to justice– a fact clearly evidenced by the seismic reduction in claims since their introduction. And today, the second tier fees have also been held to be indirectly discriminatory to women. Given it was a Labour manifesto pledge to abolish the fees, this setback for the Conservatives could be the first real test for the fragile coalition. Under normal circumstances, the Government would attempt to rush through new legislation to re-design the fees regime and limit claims pre-dating this decision – however Theresa May’s slim majority makes this difficult. Whatever their next steps are, today’s ruling may soon transform the trickle of tribunal cases into a deluge.”

Louise Taft, employment solicitor at Freemans Solicitors, says:

“It’s a huge decision with far reaching implications. All Tribunal fees paid over the last 4 years will need to be paid back – some of that will by necessity have to go to the Respondents who were ordered to repay fees to successful Claimants. We don’t know how that will happen but it will have to happen.

“We also don’t know how the Tribunals will deal with ongoing cases, or those that would be issued shortly. Will Claimants have to pay Issue and Hearing fees and then seek to reclaim them? Will claims be struck out if Issue or Hearing fees are not paid? There will need to be urgent reconsideration of the Tribunal rules.

“There is some speculation that Claimants previously put off by fees might now seek to bring claims and seek extensions of time on the basis that they are only now in a position to exercise their Tribunal rights. This might lead to a great deal of satellite litigation.”

Beverley Sunderland, Managing Director, Crossland Employment Solicitors says:

“This is a ground-breaking decision for the UK. The Supreme Court has ruled that the Government acted unlawfully in introducing tribunal fees as it did not pass an act of parliament authorising the introduction of fees in circumstances where these fees have restricted access to justice. It is also indirectly discriminatory as it disproportionately affects more women and cannot be justified. The Lord Chancellor has undertaken to repay all fees already paid. The Government’s next move will be to try and introduce legislation to properly impose tribunal fees but as they do not have a majority and given the clear and unequivocal statistics of the impact of fees on the numbers of claims brought, it is difficult to see how any such legislation will get through Parliament as no MP, whatever their politics, is likely to vote for it.”

Helen Crossland, a Partner at Seddons says:

“Today’s judgment may never have happened had Tribunal fees simply been pitched lower. The hope now is that a middle ground can be found which balances claimants’ access to justice with employers’ rights not to face a barrage of hopeless claims. Unless the judgment is overturned the emphasis should be on shoring up Judges’ ability to strike out claims early doors and for the Tribunal to be able to assess and weed out low prospect claims.”

Danielle Ayres, senior associate in employment law at Gorvins, says:

“This is a massive decision for anyone bringing a Tribunal claim, but especially those looking to bring discrimination claims, for which you had to pay £250 to issue a claim and then a further £950 before the hearing.  There were only limited circumstances in which you could qualify for remission and therefore the fees prevented many people from presenting claims to Tribunals unless they had savings or were insured for their fees and costs.

“The ruling is also particularly significant to those who are bringing pregnancy or maternity discrimination claims where money is often tight due to being on limited pay, having another mouth to feed and childcare costs. This was compounded by the tribunal fees, which were acting as a barrier to justice, preventing or putting women off raising claims after being unlawfully discriminated against.”

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