The Supreme Court (SC) has found that the tribunal fees regime, introduced in 2013, is unlawful.
Unison, the trade union that brought the initial complaint against the regime, suffered a string of defeats in the lower courts, each of which held that the introduction of tribunal fees was lawful. However, the SC found that the fees regime prevents access to justice and imposes limitations on the ability to enforce EU rights.
In addition, the SC also decided that it is discriminatory to charge higher fees for certain claims, such as unfair dismissal and discrimination.
What does it mean?
While the effect of the decision cannot yet be predicted with certainty, there will have to be changes to the regime as it stands. The most likely outcome is that the fees will be reduced rather than being removed completely, although to what level is currently unknown.
The government will have to rethink the regime in light of this decision and will most likely seek to consult on what a new regime might look like. One possibility that will be unattractive to employers is that the new regime might require employers to pay to submit a defence in the same way that employees must pay to make a claim.
A consequence of the decision that is likely to be welcomed by those who have made claims in the last four years is that the SC has ordered a refund of all fees paid by claimants since the fees were introduced. That may be less welcome for the government given the administrative burden involved in determining the refunds that must be made, especially where employers who have lost at tribunal have been ordered to reimburse the employee already.
Looking ahead, any reduction in fees or any other new measures to improve access to justice for potential claimants are likely to increase the number of claims being made. Whether that figure returns to the pre-2013 level remains to be seen and much will depend on any new regime that the government introduces.
We will continue to release updates when we become aware of potential changes, but if in the meantime you have any questions on any of the issues mentioned in the above article please contact Seanpaul McCahill.