This week the Supreme Court handed down what has been described as “the most important judgment in employment law of the last fifty years” in R (on the application of UNISON) v Lord Chancellor. The Court found that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (the “Order”) prevents access to justice and is unlawful.
The Order was introduced in 2013 and provides that to bring a claim to an Employment Tribunal (ET), a fee first needs to be paid by the Claimant(s) (and a further hearing fee in advance of the final hearing). The legality of such fees was challenged by UNISON, supported by the Equality and Human Rights Commission.
The main judgement, led by Lord Reed, concluded that the Order prevented access to justice. This was supported by evidence on the dramatic reduction in claims since the introduction of the Order (around 70%), estimating further that around 10% of Claimants did not bring proceedings despite commencing early conciliation with Acas and no settlement being reached, as they were unable to afford the fees, with the power of fee remission rarely being exercised in practice.
Another key element of the decision concerned the Order’s impact on the constitutional right of access to the courts, concluding that such fees were not justified as a necessary intrusion on this right. Additionally, the Order was held to impose unjustified limitations on the ability to enforce EU rights, and therefore unlawful under EU Law.
The decision’s immediate effect is that the Order is to be quashed, meaning fees immediately cease to be payable in both the ET and EAT and fees paid in the past are to be reimbursed by the Lord Chancellor’s Department. We do not yet know how reimbursement will work in practice, or the long term impacts this decision will have, although we can expect the number of claims issued to rise. The government may, in due course, decide to issue a consultation paper in order to propose a new fees regime, although any such introduction is likely to meet parliamentary opposition.
It may be the case that we see Claimants, who previously decided against bringing a claim due to the fees, and are now out of time to do so, issue claims regardless and argue that time limits should be extended for them on the basis that they were prevented from bringing claims due to the unlawful fees regime.
One thing we can be sure of is ETs, which already have stretched resources, will have their work cut out for them over the coming months!
We will of course keep you updated on the latest developments.