The recent Supreme Court decision in R (on the application of Unison) v Lord Chancellor that makes employment tribunal fees unlawful raises important questions for affected claimants and employers, says Andrew Masters, a partner and head of employment at South East law firm Furley Page.
The immediate effect is fees are no longer payable and those paid in the past four years, amounting to £32 million, must be reimbursed by the government.
It is, says Andrew, ‘a landmark and momentous decision’ and adds: “Simply put, the Supreme Court determined that society loses out if access to justice is blocked. It again demonstrates an independent judiciary will, in specified circumstances, intervene to challenge decisions of the executive and defend principles of common law.”
But, Andrew says, however welcome the decision may be for employees, the practicalities are unknown.
It is likely the number of claims in the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) will increase following a significant reduction triggered by the fees. However, the Acas Early Conciliation Scheme has had some success in resolving disputes and will remain, so numbers may not increase to pre-July 2013 levels.
In theory, the Government could come up with another system, perhaps one that puts a greater cost burden on employers rather than simply being placed on employees. However, it appears unlikely, at least for the time being, given the decision of the Supreme Court, the practical difficulties and priorities of the minority Government and relative cross-party support for the abolition of fees.
Questions to be answered
With immediate effect, fees have ceased to be payable in the ET and in the EAT and the Government must reimburse those paid in the past.
But this in itself raises a number of questions needing answers, and we are currently awaiting details from the Government on the arrangements that are to be put in place.
- How will claimants recover their fees? Will they need to apply or will the Government process funds automatically?
- What about employers who had to reimburse winning claimants for the fees they were unlawfully required to pay? Will the Government refund the employer? Or will employers have to ask for refunds from claimants once those claimants have received their refunds?
- What about claimants who paid the fee but then settled their claim? If they get a refund, will the employers who settled be able to recover for that part of the settlement representing the fee? Will they recover it from the claimant or the Government?
- Will potential claimants who were unable to bring a claim because of the fee be able to sue the Government for the losses caused by their inability to bring a claim? Will they be able to submit late applications to the ET and, if so, how will the ET treat those applications – this is particularly relevant for discrimination cases?
- There is likely to be an increase in the number of claims. Will additional resources, financial and others, be transferred to the already over-burdened Tribunal Service and/or Acas Early Conciliation Scheme?
Andrew says: “Where barriers are erected to enforcing workers’ rights, such rights are effectively worthless. If employers know claimants are unable or unwilling to bring claims, the whole system of employment protection is undermined.
“Employment Tribunal fees have been abolished and we now need robust answers for claimants and employers affected by the barriers erected by the Fees Order.”