The Supreme Court decision in R (on application of Unison) v Lord Chancellor (2017) UK SC 51 (26/07/2017) ruled unanimously that the Employment Tribunal fees brought in by government in 2013 are unlawful, deny the fundamental right of access to justice and contrary to both common and EU law. Additionally, the Supreme Court also ruled that these fees discriminate against women.
Unison persisted with their claim despite numerous rejections and set backs from the lower courts.
This has to be one of the most momentous recent decisions in Employment law and the ramifications of this ruling are going to be enormous and complex.
The number of claims in the Employment Tribunal dropped from 7,000 to 1,000 (a reduction of nearly 70%) after the imposition of those fees, and it's highly unlikely that future numbers of claims will reach 7,000 again. This is largely because of the mandatory ACAC early conciliation process.
Apparently, government are considering whether or not to reintroduce fees at lower levels and in a lawful manner, but even if they decide to do this it will take a great deal of time.
In the first instance, the most likely effect is to cause further strain and delays within the severely underfunded Employment Tribunal system.
Fees paid by claimants since 2013 will fave to be refunded, and those employers who settled or paid compensation (including the tribunal fee element) will also have to be refunded.
It may be possible for employees now to bring claims out if time, but this very much depends upon the type of claim (i.e. unfair dismissal or discrimination). Each of these claims have individual tests that must be satisfied, e.g. Whether it was 'not reasonably practicable' or if it is 'just and equitable' to bring a claim, respectively.
This could lead to huge difficulties for those seeking to bring or defend older claims, particularly if documentation and records have been destroyed or lost.
The Employment Tribunal has made a recent case management order dealing with the consequences of this Supreme Court ruling:
1) The stay on those claims relying upon this judegement is to be lifted immediately;
2) Reimbursement of fees are to be made, following administrative arrangements made by both the MOJ and HMCTS;
3) Reinstatement of claims rejected on the basis of non payment of fees shall be made pursuant to administrative arrangements produced by the MOJ and HMCTS;
4) Remainder of claims brought upon reliance of the Unison judgement should be brought in the usual way to the regional Employment Judge for each ET region.
