Tribunal Fees: What we suspected all along! No impact on tribunal costs, no impact on reducing unmeritorious claims, indirectly discriminatory to women and did not result in more ACAS settlements.

Today is a good news day for access to justice (and for employment lawyers!) In a pivotal judgment based on the principle of access to justice, the Supreme Court in R (on the application of UNISON) v Lord Chancellor has declared employment tribunal and EAT fees to be unlawful under both domestic and EU law!

In the Supreme Court’s view, the order that brought the regime into effect was unlawful from the outset and must be quashed because it has the effect of preventing access to the tribunal system. The immediate consequence is that tribunal and EAT fees cease to be payable under the existing scheme. Fees already paid must presumably be reimbursed by the Government, in line with an undertaking given by the Lord Chancellor in July 2013.

Our favourite line by far as we imagined their Lordships (and her Ladyship) patiently explaining to Mr Grayling this piece of advice to non-lawyer Lord Chancellors was:

67. It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law.

You will no doubt recall that tribunal claims dropped significantly (by 70%) after the introduction of fees in July 2013.

Lord Reed delivered the leading judgment, with which the other six Supreme Court Justices agreed. He referred to evidence on the impact of fees – in particular, a consultation paper published by the Ministry of Justice in January 2017, ‘Review of the introduction of fees in the Employment Tribunals: Consultation on proposals for reform’ (‘the Review Report’).

Apparently the proportion of claimants receiving fee remission was far lower than the Government had anticipated, while the Lord Chancellor’s discretionary power to remit fees in exceptional circumstances had rarely been exercised.

We wonder what will become of the claimants who were put off issuing their claims because of the tribunal fees and consider that this will generate some satellite litigation and wonder how the administration of refunding those claimants who did have to pay a fee which was not refunded by the Respondent will work.