Tribunal fees Supreme Court Ruling

Posted 07/12/2017 : By: Colin Makin

The Supreme Court has today decided the case of R (on the application of UNISON) v Lord Chancellor. Unison challenged the rules in relation to tribunal fees introduced in July 2013 which required workers in the UK to pay:

  • a fee for bringing a claim to tribunal (issue fee)
  • a further fee if the claim is heard (hearing fee)
  • a fee if they wish to appeal the decision.

The High Court initially held there was insufficient evidence to determine these fees were unlawful or discriminatory. Unison appealed to the Supreme Court claiming the fees were an unlawful exercise of statutory power as they restrict the right of access to justice and they are indirectly discriminatory against women and other protected groups.

In considering whether the fees prevented access to justice the Supreme Court considered the impact of the fees on a workers behaviour in the real world. The Court determined a worker on low to middle income could only afford the fees by forgoing an acceptable standard of living, therefore the fees cannot be regarded as affordable.

The Supreme Court therefore held the fees to be unlawful and preventing access to justice. As a result, with immediate effect fees are no longer payable for claims in the ET or appeal to the EAT.

In relation to the discrimination claim, the Supreme Court again agreed with Unison considering the higher fees for Type B claims (such as: discrimination, unfair dismissal and equal pay) in comparison with Type A claims (such as: redundancy pay, payment in lieu of notice and holiday pay) indirectly discriminates against women, as a higher proportion of women bring a Type B claim.

For those that have previously chosen to not bring a claim because of fees, it will wait to be seen if tribunals will accept arguments that such claims can now be brought out of time on the basis that it was not reasonably practicable to bring them before because of the unlawful fees regime. But for those who brought a claim between 2013 and now the Lord Chancellor has been ordered to repay the fee amount.

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