In January 2017, the government published its review of employment tribunal fees which decided that there was no conclusive evidence that fees had prevented people from bringing claims. Hot on its heels, on 26 July 2017, the Supreme Court delivered its judgement in the case of R (Unison) v Lord Chancellor quashing the Fees Order that introduced the fees in 2013, on the basis that it was unlawful under both domestic and EU law because it prevented access to justice and was indirectly discriminatory against women. In reaching its decision the Supreme Court found that the reduction in claims, as a consequence of the introduction of the fees, had been so substantial as to suggest that a significant number of people had found the fees to be unaffordable.
The justice minister has now said that the government would take immediate steps to stop charging fees and put in place arrangements to refund those who have already paid. A statement issued on behalf of the HM Courts and Tribunals Service to employment tribunal users has confirmed that immediate steps were being taken to stop charging fees in the employment tribunals and the employment appeal tribunal.
There are significant practical implications arising out of the decision of the Supreme Court. Firstly, there will need to be revisions to the process for submitting claims and to the Employment Tribunal Rules. This is likely to result in delay while the changes are made.
Secondly, as the Fees Order was found to be unlawful from the point at which it was introduced, claimants who have paid fees since their introduction in 2013, will need to be reimbursed. This is expected to cost in the region of £32m. There is also the added complication of respondents who were ordered by the employment tribunal to reimburse the fees paid by successful claimants.
Thirdly, there may be late claims from individuals who assert that they are outside the period for bringing a claim because they were deterred by the ET fees. The employment tribunal has the power to extend time for submission of a claim if it finds that it was not reasonably practicable to present the claim in time. It remains to be seen how this issue will be dealt with, which has potential to create a significant backlog of cases.
The government will now need to unravel the fees regime and its impact on the tribunal service. It is possible that it may seek to maintain a system of fee payment at a reduced level to deal with the access to justice point. Whatever it decides to do it will need to act quickly in order to uphold the integrity and efficiency of the employment tribunal system.