Over the last few years, UNISON (the union) has been making repeated efforts to have the existing Employment Tribunal fees regime declared unlawful. Until now, it has enjoyed little success. However, the landmark decision of the Supreme Court, published on 26 July 2017, has changed all that. The seven Supreme Court justices who heard UNISON’s case unanimously concluded that the current Employment Tribunal fees regime is unlawful and should be quashed. This means that with immediate effect, Employment Tribunal fees are no longer payable. It also means that the Ministry of Justice (MoJ) will be obliged to facilitate the repayment of all ET fees paid over the last 4 years. The total bill is likely to amount to about £32 million. All in all, it was not a good day for the MoJ. Lord Reed, who gave the leading judgment in the UNISON case, concluded that the ET fees regime has unfairly denied people access to justice through the Employment Tribunal system. At the same time, it has raised relatively little money for the public coffers and has done nothing to discourage ‘unmeritorious’ ET claims. To add insult to injury, Lady Hale found the fees regime to be indirectly discriminatory as well, tending to disadvantage more women than men.
Precisely how the Government will react to this decision remains unclear. There is the prospect that the MoJ will move to introduce an alternative fees regime. They may set fees at a lower level and/or increase the range of circumstances in which no fee is payable. My own view is that they should give up the whole thing as a bad job. The uncertainty created by any new fees system would be considerable, bearing in mind the prospect that it too would be challenged. Furthermore, the Supreme Court judgment placed so much emphasis on the importance of access to justice that it begs the question of whether any fee is appropriate in cases such as these.
It’s fair to say that Employment Tribunal fees have never been particularly popular with employment lawyers (regardless of whether they predominantly act for employers or employees). Many will say that this is because of the impact it has had on our workload and our livelihoods. There is bound to be a degree of truth in this; I won’t pretend otherwise. Nevertheless, I like to think that our collective view is primarily formed on the basis of a more principled conclusion that access to justice is a cornerstone of our legal system and that tribunal fees have created an unfair impediment. No doubt, you will form your own view on whether you believe this to be true.