On 27 July 2017, the Supreme Court quashed the Westminster Government’s 2013 order which introduced the requirement for claimants to pay fees (of up to £1,200) to raise Employment Tribunal (ET) claims.
Scottish judge, Lord Reed, giving the leading judgment of the court, declared that the imposition of fees was preventing access to justice and must be removed.
The effect of this ruling is that all ET (and Employment Appeal Tribunal) fees paid since 2013 will have to be reimbursed by the Government. The Supreme Court is the highest court in the land and there is no right of appeal against the decision.
At Moray Employment Law, we never approved of the introduction of tribunal fees in the way they were implemented because there were immediately such obvious access to justice issues. There have been times since 2013 when the number of employment tribunal claims has reduced by as much as 80% compared to the position under the previous toll-free regime.
As Lord Reed explained, the law does not prohibit court or tribunal fees being charged.
In some respects, fees can be a force for good because they may help:
- to provide resources for the justice system, taking some of the weight off tax payers and, in turn, securing access to justice;
- to encourage those in dispute to settle their issues more quickly – so they don’t have to incur the fees in “going to court”; and
- deter unreasonable behaviour – weak or unmeritorious claims – thus increasing the efficiency of the system.
What is fundamental, however, is that people must have a guaranteed right of access to courts which administer justice efficiently and fairly.
Courts are there to make sure that the laws made by Parliament – and by the courts themselves, in deciding cases – are applied and enforced. If people’s access to the courts is impeded (e.g. by high court fees), the justice system cannot operate properly. If you can’t afford to test the law and enforce your rights through the courts, laws are liable to become a “dead letter”.
The Government had wrongly interpreted the benefit of access to the courts as a purely private matter for individuals.
In fact, individuals’ ability to bring claims provides much broader social benefits because:
- Many cases establish legal principles of general importance;
- Many cases clarify points of genuine uncertainty;
- This operates as a check on unacceptable behaviour – in other words, society benefits through individuals and businesses understanding that, if they fail to meet their obligations, there is likely to be a remedy against them.
In the context of employment law, employees need to have realistic scope to bring claims against their employers if their rights are infringed or else the employer has no incentive to show respect for employee rights. If no fair system of adjudication exists, the party in the stronger negotiating position (i.e. the employer) will generally “win”.
What will happen from here?
The Westminster Government may, in due course, try to introduce a new fees regime which does not constitute an unjustifiable restriction on access to justice.
In the meantime, some commentators are predicting a tsunami of employment law claims in the wake of the fees abolition. If claim levels reduced by about 70% overall while fees were being charged (and had therefore reached 30% of their pre-fees total), it would be reasonable to expect that a rebalancing of the system would result in a three-fold, or greater, increase in tribunal claims.
Reasonable employers have nothing to fear from the Supreme Court’s decision but, as an employer, it is prudent to consider what you can be doing to reduce your claims risk as far as possible. Obvious areas to include in your thinking are:
- Review of employment contracts; and
- Review of policies and procedures (e.g. how to go about conducting a disciplinary procedure correctly)
How we can help
We hope you have found this a useful discussion of the likely future issues with Employment Tribunal Claims now fees have been abolished.
If you are based in or around Moray and have any concerns as a result of the Supreme Court’s ruling on Employment Tribunal fees – whether that is as an employer or an employee – feel free to contact us. All initial enquiries are at no charge and without obligation. Call us on 01343 544077 or send us a Free Online Enquiry.
