Employment Tribunal Fees Are Unlawful And Will Have To Be Repaid By The Government

The Supreme Court has unanimously held that the introduction of the current fee system in the Employment Tribunal and Employment Appeal Tribunal - via a Fees Order in force from 29 July 2013 - was unlawful under both domestic and EU law, as it prevented access to justice and was indirectly discriminatory. The case is a significant instance of the rule of law restraining the power of the executive.

In light of the judgment, the Fees Order is therefore invalid and no fees will be payable under it going forward. The Government will also have to refund up to an estimated £32million to people who have brought employment claims since the fees were introduced.

Background

The Fees Order required a claimant to pay an 'issue fee' when a claim form was presented to an Employment Tribunal and a further 'hearing fee' shortly before the hearing of the claim. There were three stated policy objectives: to transfer some of the cost of the Employment Tribunals system from general taxpayers to system users; to incentivise early settlement by adding an element of cost; and to dis-incentivise unreasonable behaviour, such as bringing weak or vexatious claims.

There were two categories of fee:

type A claims (typically requiring little or no pre-hearing work and...

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