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Supreme Court rules employment tribunal fees must be ‘quashed’

26 July 2017

The Supreme Court has allowed the appeal by Unison against the legality of the current system of employment tribunal fees, unanimously holding that the fees regime introduced in 2013 is unlawful.

There has been a 79% decline in claims since the fee regime was introduced in 2013, attributed to affordability. This figure has been argued to evidence that the Fee Order went well beyond the original intentions which included deterring weak and vexatious claims and, in fact, acted as a barrier to justice.

Lord Reed, on behalf of the Supreme Court concluded:

The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice… (it) must be quashed”.

This “triumph for access to justice” will not be welcomed by all.

It is an expensive day for the Government. Justice Minister Dominic Raab has said:

"We will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid."

This figure is estimated to be in excess of £27m.

It is also a potentially expensive day for employers as the sharp drop in tribunal proceedings over recent years may soon seem like a short period of respite as once again the number of employment tribunal claims look set to rise.

So, is this the end of tribunal fees for good? Given the amount generated by the fee regime in spite of a 79% drop in the number of claims, it is difficult to contemplate that the Government will scrap the fee regime entirely. A lesser fee resulting in an increase in claims could be just as profitable and go some way towards mitigating the money that will inevitably be spent putting this injustice right.

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