The Supreme Court has allowed the appeal by Unison and ruled the government was acting unlawfully and unconstitutionally in 2013 when it introduced fees of up to £1,200 to reduce the number of malicious and weak cases brought by Claimants. This is a significant decision in light of the 79% reduction in cases over three years (understood to be linked to the introduction of fees).
The Ministry of Justice has said the government will take immediate steps to stop charging and refund payments. It is reported the government will now have to repay up to £32m to Claimants, albeit it will fall to the taxpayer to pick up the bill.
Dave Prentis, the Unison General Secretary said: “The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.”
He added: “These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up. We’ll never know how many people missed out because they couldn’t afford the expense of fees.”
Dominic Raab, the Justice Minister said “The tricky, the difficult, the fluid balancing act that we’ve got is we want to make sure there’s proper access to justice, we want to make sure frivolous or spurious claims don’t clog up the tribunal and at the same time we’ve got to make sure we’ve got the right way to fund it”
So what may happen next?
The fees regime is not expected to be abolished entirely. A consultation paper is probable, followed by a new fees regime, with fees at a lower level and/or a fee payable by the employer when the ET3 Response is lodged.
The Employment Tribunals Service will need to urgently rewrite the Tribunal rules, and re-programme the online Claim Form system that until now necessitated Claimants making an online payment.
Whilst the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor’s Department, this is not in all cases straightforward as many successful claims will have had fees ordered to be paid by the Respondent , and there will need to be a trawl of all decided cases.
An interesting dilemma may arise from asking what about all those individuals who chose not to bring a claim because of the fees? Following today’s Supreme Court Decision is it just and equitable to now extend time for bringing a claim? Will Tribunals be amenable to the argument that it was not reasonably practicable to bring a claim when a Claimant was significantly impeded from doing so by an unlawful fees regime?
If you would like to know more about the Supreme Court Decision please contact our Head of Employment, Allison Grant on firstname.lastname@example.org or 020 7822 4125.