Tribunal fees found unlawful.  Expect a rise in claims.

Tribunal fees to claimants to be scrapped

In July 2013, new fees were introduced to pursue disputes against employers in the tribunal courts to defer employees from lodging unfounded claims. Type A claims for sexual harassment, unfair dismissal and discrimination cost claimants £1,200. Type B claims to recover unpaid wages or holiday pay cost the employees £390. This has had a major impact on the number of claims processed by the tribunal courts.

Third time lucky: Unison challenge to tribunal fees succeeds

Unison challenged the employment tribunal fees system that was introduced in 2013. After failed attempts at the High Court and the Court of Appeal, their claim succeeded in July 2017  in an appeal to the Supreme Court.

XpertHR has outlined the case in detail: The union argued before the Supreme Court that the introduction of employment tribunal fees in July 2013 was an unlawful exercise of the Lord Chancellor’s statutory powers because the fees:

  • interfere unjustifiably with the right of access to justice under both UK common law and EU law;
  • frustrate the operation of legislation granting employment rights; and
  • discriminate against women and other groups with protected characteristics under the Equality Act 2010.

Claimants to be paid back unlawfully charged fees

PersonnelToday reported that the government “will now have to pay back around £32 million to claimants who have already been charged a fee since they were introduced in 2013.”

The Supreme Court finding does not state that no fees can be charged to the claimants. They found the fee level too high so lower fees could be introduced instead. The court found that the fees were disproportionately high for smaller claims, which make up the majority of grievances. Proportionate fees linked to the size of the claim could therefore be an option. The court also found that the 2-tiered fee structure discriminates against female claimants who are more likely to bring type A claims, with higher fees.

The court did not stipulate how the abolition of current fees system should take place. This will be left for the Ministry of Justice to organise. Employers can expect an increase in tribunal claims as the fees are removed.


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