Employment Tribunal Fees Declared Unlawful by UK’s Highest Court

By Paul Caira, Writer 26 Jul 2017

Employment tribunal fees, which have been in place since 2013, have been ruled as unlawful by The Supreme Court.

Britain’s highest court overturned a previous decision by the Court of Appeal, which said while the case was “troubling“, it didn’t go against the principles of the law.

The case, which was brought to court by the trade union Unison, started after a startling drop in the number of cases after the fees were introduced. Official Government statistics show that figures have gone down by 70 per cent.

The union successfully argued that the fees were discriminatory against women at least, and meant that families on low incomes would have to suffer unreasonable hardship to bring a case – many of which were for very small amounts of money.

So, what’s the background to this case?

Image Credit: Pexels

If you have a disagreement with your employer – say, you think you have been sacked for no reason, unfairly treated because of your race or sex, or maybe had money wrongly deducted from your pay –  and if you can’t sort it out with them, your last option is to take a case to the Employment Tribunal. This is essentially a court which deals with employment disagreements.

Until 29th July 2013, this was was free to do, but since then it has cost anywhere between £160 to more than £1,000 to bring a case, depending upon how complex it is, whether others are also involved, and whether it actually ends in a hearing. In particular, it is much more expensive to bring cases which involve discrimination against people because of their race, sex, disability or sexuality.

The court thought about whether doing this meant that some simply couldn’t, in practice, bring their case, and Unison challenged the Lord Chancellor’s right to bring in the fees, using the process called Judicial Review, where the decisions of people in charge of public organisations can be challenged. Both the High Court and the Court of Appeal had decided that the fees were okay.

What human rights does this involve?

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In this case, the rights the court looked at were those coming from EU law rather than the Human Rights Convention, but the judgment agrees that these are now to most purposes the same. There is, in any case, an old principle of English law (‘common law’) which guarantees access to justice.

There is no point having rights unless you can enforce them, which means you must be able to go to court with your case. If it costs you so much that you can’t afford to do it, you might as well not have the rights. This case decided that the fees are at such a level that people just aren’t able to complain to the courts about bad behaviour of their bosses, which isn’t fair.

The court also considered whether fees could cause people with particular ‘protected characteristics’ additional unfairness. For example, women or minority groups are more likely to be hard up, so less able to bring a case. Add to this it’s typically more expensive if the tribunal involves sex discrimination, and that women are far more likely to bring these sorts of complaints than men, and it becomes even more unfair.

Why did the court decide this way?

Image Credit: Tim Gouw / Unsplash

Just introducing fees isn’t enough to show that they aren’t fair. Most people would prefer not to have to pay fees, but that’s not the same as not being able to afford them. People who are very hard-up can also sometimes apply for legal aid, so they don’t have to pay.

Fees also have the effect of making workers think twice about whether their case is strong, and stops the courts getting clogged up with cases which have no legal argument – essentially ones which can’t be won, and are caused only by employees’ anger or annoyance with their bosses. The aim of the fees was to take some of the burden of bringing these cases off the taxpayer.

But some cases are for very small amounts of money, and the court said the fees meant some families would have to suffer unreasonable hardship to be able to afford them, and to enforce their rights. The court also agreed that women were more likely to bring discrimination cases than men, and that the higher fees discriminated against them.

How’s the news gone down?

Video Credit: Victoria Derbyshire / Twitter

Unison, the union that brought the claim, is unsurprisingly delighted. Dave Prentis, their general secretary, said: “The Government are not above the law. But when ministers introduced these fees they were disregarding laws, centuries old, and showing little concern for employees seeking treatment following illegal treatment at work.”

They’ve also received backing from several Labour politicians, including both leader Jeremy Corbyn and his deputy Tom Watson.

The Government said, at the beginning of the case, if the fees were found to be unlawful, they would reimburse all who had had to pay them. It remains to be seen how this will be done. You can see the full judgment online.

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About The Author

Paul Caira Writer

Paul Caira is a teacher and writer. He holds a degree in Mathematics from London University, and studied the BPTC at City Law School. He was called to the Bar in 2015, and blogs about a variety of legal and political topics, including Brexit, sex law, sexual politics and gender politics.

Paul Caira is a teacher and writer. He holds a degree in Mathematics from London University, and studied the BPTC at City Law School. He was called to the Bar in 2015, and blogs about a variety of legal and political topics, including Brexit, sex law, sexual politics and gender politics.