Last week, the UK Supreme Court unanimously held that, as the order introducing Employment Tribunal and Employment Appeal Tribunal fees prevented access to justice and as set out in Lady Hale’s judgment, discriminated against women. The Supreme Court held that Tribunal fees were unlawful and must be quashed with immediate effect.
The landmark decision followed an application for judicial review by UNISON against the introduction of tribunal fees in July 2013, but was rejected by the Court of Appeal (weekly LELR 435). Since then, workers who have been sexually harassed, sacked because of their race, or bullied because of their sexuality have been asked to pay £1,200 for their claim to be heard by an employment tribunal (known as a Type B claim). Those seeking to recover unpaid wages or holiday pay have had to pay up to £390 (a Type A claim), unless they qualified for fee remission.
The Fees Order made provision for the full or partial remission of fees if a claimant’s disposable capital, together with their partner’s, was below a specified amount and thereafter feel below the gross monthly income threshold. However, a briefing note by the House of Commons library in 2015 found that fee remission was awarded in less than 4,000 claims between July 2013 and 2014, compared to a total of 52,442 claims received between August 2013 and June 2014 (weekly LELR 403).
The Supreme Court has now held that the question of whether fees effectively prevent access to justice must be decided according to whether they can reasonably be affordable in the real world. If some low or middle-income households can only afford fees by forgoing an acceptable standard of living, the Court stated that they cannot be regarded as affordable. It said that the Fees Order was also unlawful because it contravened the EU law guarantee of an effective remedy before a tribunal.
The Supreme Court also found that Tribunal fees were deterring cases which were low in value but of wider public importance and benefit other claimants.
In addition, the order could be indirectly discriminatory because a higher proportion of women bring type B as opposed to type A claims and therefore have to pay higher fees. Nor was charging higher fees a proportionate means of achieving the stated aims of the Fees Order as it had not been shown to be more effective at transferring the cost of the service from taxpayers to users, and in some type B cases (such as pregnancy dismissal) the higher fee did not correspond to a greater workload placed on the tribunal.
The Court also held that meritorious might be deterred by the higher price, and there was no correlation between the higher fee and the merits of the case or incentives to settle. The Supreme Court also found that Tribunal fees had resulted in employer’s waiting to see whether Claimant would pay the Tribunal fee before engaging in settlement discussion at the ACAS Early Conciliation stage.
Rakesh Patel of Thompsons Solicitors said “The fees regime was a major barrier to enforcement of workers’ rights and this is a historic victory in that battle. The removal of fees no longer prices workers out of the right to access to justice and it is hoped that we never see a fee regime return to the Tribunal.”
A full summary of the judgement will be made available on LELR in a few weeks.