Thursfields warns of surge in employment tribunal claims after Government loses fees decision

The Supreme Court’s decision to rule the Employment Tribunal fees regime unlawful will have a massive impact, Thursfields’ Jayne Holliday has warned.

Jayne Holliday, an employment law specialist said the decision will have a “big effect” on both employers and employees alike.

However, she believes, some sort of fee system is likely to be reintroduced.

The union Unison had been fighting a judicial review of the system since the fees were introduced in July 2013. Fees started at around £160 and increased to between £230 and £950 for further hearings. For certain claims, they could go as high as £1,200.

It all resulted in a 70 per cent-plus reduction in cases.

The Government will now have to refund more than £27 million to the thousands of people charged for taking claims to tribunals over the last four years.

Jayne Holliday said: “The Supreme Court’s rationale for granting Unison’s appeal was the disparity between the fees that are payable in the County Court for claims of a similar monetary value and those issued in an Employment Tribunal. There were also arguments that there is a social importance of being able to enforce employment rights which are being hindered by the fees regime.

This is big news for employers and employees alike. While it is unlikely that fees will be abolished altogether, they will be reduced to a level that is seen to be more affordable for claimants. It is also possible that employers will be required to pay a fee when they enter their defence.

This will undoubtedly lead to a rise in the number of claims issued and will see employers once again having to deal with claims on a more regular basis.

While the next steps are not clear it seems most likely that the Government will start an immediate consultation on the fees level and, for the time being, fees will be suspended when claims are issued.

The Government’s problems appeared to stem from not bringing an Act before Parliament requiring Employment Tribunals to charge a fee by using secondary legislation, they had laid themselves open to challenge.

The judges were in particular irked by the unfairness in having to pay a large Employment Tribunal fee to pursue a very small claim and in effect preventing access to justice as a result.”

The Supreme Court also held that the fees imposed unjustified limitations on the ability to enforce EU rights and was thus unlawful under EU law.

For further information, please contact, Jayne Holliday, Senior Associate  – jholliday@thursfields.co.uk  or 0121 227 3887