Tribunal Fees Illegal And Prevent Access To Justice Says Supreme Court

In stark contrast to Unison's previous failed attempts to challenge the 2013 introduction of tribunal fees, the Supreme Court has today found in its favour, holding that tribunal fees are both unlawful and discriminatory.

Fees unlawful

The Supreme Court has held that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (the Fees Order) is unlawful under both domestic and EU law because it has the effect of preventing access to justice.

It found that, unlike court fees, tribunal fees bear no direct relation to the value of the claim. As such, they can be expected to act as a deterrent to claims for modest amounts or non-monetary remedies.

The Supreme Court commented on the evidence before it which showed that the effect of the fees was a dramatic and persistent fall in the number of claims brought in employment tribunals (a drop of 66-70%), with fees being the most frequently cited reason for not submitting a claim.

It was found that low to middle income households can only afford fees by forgoing an acceptable standard of living. The Supreme Court held that this shows that the fees cannot be regarded as affordable.

It went on to find that fees, even when affordable, prevent access to justice where they render it futile or irrational to bring a claim. For example, the Court felt that no sensible claimant would bring a claim for modest or no financial awards (which together form the majority of tribunal claims) unless he can be virtually certain of success, with the award including the recovery of fees and being satisfied in full.

The stated aims of the Fees Order were to transfer part of the cost burden of the tribunals from taxpayers to users of their services, to deter unmeritorious claims, and to encourage earlier settlement. The Supreme Court found that none of these aims had been met by the Fees Order.

The Supreme Court also held that the fees are unlawful because they contravene the EU law guaranteeing an effective remedy before a tribunal by placing a disproportionate limitation on accessing a tribunal.

Fees discriminatory

The fees have also been found to be...