On 26 July 2017, with a landmark decision, the UK Supreme Court declared that the Government’s Tribunal fee regime was unlawful. The fee system introduced 4 years ago has operated to deter many potential Claimants from commencing Tribunal proceedings to enforce their legal rights, and the Supreme Court decided that this was an act of discrimination, and also had impacted upon the ability of potential Claimants to enforce their rights under EU law.
The decision is well worth reading for the analysis of the importance of access to justice, it is not simply a matter of having the legislation, citizens need to be able to pursue claims using an effective legal mechanism, with reasonable remedies. Seven Justices undertook the review of the case pursued by Unison, and the finding in favour of the union was unanimous.
In the period since Tribunal fees were introduced claims have dropped by in the region of 70%, impacting in particular upon the most vulnerable claim areas such as for different types of discrimination and maternity related claims. To pursue a claim of unfair dismissal or any type of discrimination it is necessary to pay total fees of £1,200.00 to be able to take your case to a Tribunal hearing and many people were required to pay the fees, arising in part from the restrictive rules relating to fee remission. The fee regime acted as a significant deterrent for people starting Tribunal claims, and on a personal level I can confirm that many potential clients have been unable to proceed when faced with the prospect of paying such significant sums.
I would expect that the number of claims will rise, and it was disappointing, although not a complete surprise, to read the newspaper headlines on 27 July 2017 referring to Claimants being on a type of gravy train. Such comments are absurd, and there is little if any evidence to justify the assertion that claims were pursued without merit, or simply to cause inconvenience or annoyance to an employer. It should be noted that there is no legal aid available to pursue a claim to an Employment Tribunal, and the only assistance provided with legal fees results from trade union membership, or some form of insurance, or if a Solicitor will act No Win – No Fee.
As well as opening up the right to proceed with claims in the future, the decision has other important consequences. The Government has already conceded that it will have to repay about £32m of fees, and how this is dealt with will be a logistical challenge all round. Many fees paid have been recovered from Respondents, and due account will need to be provided when dealing with the relevant Government department. Already though Tribunals have confirmed that no further fees should be paid, and urgent work will need to be undertaken by the Tribunal Service to ensure that new claims can be lodged online, with the whole system needing to be changed and new forms published for use by Claimants and their representatives.
The Supreme Court decision stands in my view as the most significant Judgment by the highest UK Court in relation to employment law issues for many years. It is a vindication of our independent judiciary, and whilst they do not always get it right, the unanimous decision of the Justices confirms that the Courts respect the importance of preserving accessible and enforceable legal rights, and it should no longer be the case that Claimants are deterred from exercising those rights simply because of their personal financial circumstances.