By now, you probably know about this morning's Supreme Court has allowed the appeal by Unison, holding that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013(which led to a 70% reduction in claims) is unlawful and will be quashed.
In the main judgment, the Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money). Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. He relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved. If the Fees Order prevents access to justice, it will be ultra vires.
And the Supreme Court held that the Fees Order DOES effectively prevent access to justice (paras 90-98). It also held that the Fees Order imposed unjustified limitations on the ability to enforce EU rights (ie those claims based on EU law), and was thus unlawful under EU law.
Baroness Hale gave a separate, short, judgment on the indirect discrimination aspects of the fees regime. She concluded that it was indirectly discriminatory to charge higher fees for type 'B' claims (which include discrimination claims) than type 'A' claims.
WHAT WILL HAPPEN NEXT?
First, it is unlikely the fees regime will be abolished entirely. It is probable that the government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its ET3.
Second, the Employment Tribunals Service has its work cut out. Thought will need to be given to an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system.
Third, the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor's Department (and the Lord Chancellor has agreed to do so). This is easier said than done - many successful claims will have had fees ordered to be paid by the Respondent, and there will probably need to be a manual trawl of all decided cases.
Fourth, what about all those people who chose not to bring a claim because of the fees? Will tribunals be amenable to the argument that it was not reasonably practicable to bring a claim when a Claimant was significantly impeded from doing so by an unlawful fees regime? Or that following today's decision it is just and equitable to extend time for bringing a claim?
The final thing that needs to be said is congratulations to the legal team at Unison (here is their press release), especially Adam Creme and Bronwyn McKenna, and to Dinah Rose QC who presented the arguments before the Supreme Court. Congratulations and well done.
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