Workers victory as Supreme Court scraps tribunal fees and forces government to repay claimants

Supreme Court rules that fees are particularly discriminatory towards women and orders government to scrap them

THE UK Supreme Court has ruled that employment tribunal fees are unlawful, scrapping them and forcing the government to repay up to £32m to claimants.

The case was brought after rules, introduced in 2013 by then Lord Chancellor Chris Grayling MP, imposed fees on employees bringing claims against employers to tribunal.

The fees, which start at £160 and could be as much £1,200, "had a deterrent effect upon discrimination claims, among others," according to the Supreme Court Justices.

“It’s a major victory for employees everywhere. Unison took the case on behalf of anyone who’s ever been wronged at work, or who might be in future.” Dave Prentis, Unison

Lady Hale, who will become the first female president of the Supreme Court in October this year, also ruled that fees were "indirectly discriminatory" against women, as a higher proportion of women bring forward discrimination claims.

Unison general secretary Dave Prentis said: "It’s a major victory for employees everywhere. Unison took the case on behalf of anyone who’s ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand."

The rules, forcing claimants to contribute to the costs of their tribunal case, followed a period of consultation, during which it was noted "that the impact of fees on the number of claims was difficult to forecast". From 2013 to 2016, there was a 79 per cent reduction in cases brought, according to the BBC.

Unison argued that the rules were contrary to fundamental rights of access to justice, and that they unfairly discriminated against female claimants, who make up a disproportionately high number of applicants liable for the higher fees.

The government did not dispute that fees would restrict access to justice, instead arguing that a balance must be struck between accessing justice and efficiently delivering it. The court agreed with this in principle, but added: "Fees must be affordable not in a theoretical sense, but in the sense that they
can reasonably be afforded."

The court ruled that the balance was unfairly skewed against employees, with fees described as "disproportionate".

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Prentis added: "The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness, too."

Rob Gowans from Citizens Advice Scotland (CAS) said: "[CAS] warmly welcomes today’s ruling by the Supreme Court that employment tribunal fees are an unlawful barrier to justice and should be ended […] evidence has shown that fees make it harder for people to claim, even when they have been treated unfairly at work.

"Since the introduction of fees, the decision to bring a claim to an employment tribunal has become a financial one, not based on the merit of a person’s claim. Fees have also negatively affected the power balance between workers and employers."

The judges took the opportunity to comment on "indications of a lack of understanding" in government of the importance of access to justice.

They wrote: "Without such access, laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade. 

"That is why the courts do not merely provide a public service like any other."

CommonSpace contacted the Ministry of Justice and Scottish Conservatives for comment but had not received a response by time of publication.

Picture courtesy of World Bank Photo Collection

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