Supreme Court delivers ground breaking decision on ET fees

A major development has today taken place in the Supreme Court.  Many of you will be aware that over the last couple of years we have seen the introduction of Employment Tribunal fees leading to a vast reduction in the number of claims brought in the Employment Tribunal.

However, this morning in what has been heralded as “the most important judgment in employment law over the last 50 years” the Supreme Court has found that the Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013 (Fees Order) actually prevents access to justice and is unlawful.

Interestingly one of the Supreme Court judges found that having a different level of fees for discrimination cases was an act of indirect discrimination.

So what are the immediate consequences of this decision:

• As of today, fees ceased to be payable for claims in the Employment Tribunal and appeals to the Employment Appeal Tribunal
• Fees paid in the past must be reimbursed.

However, experts are advising that the judgment has a wider constitutional significance by preserving the right to access to justice and clarifying that the ability to bring a claim to the Employment Tribunal is a fundamental constitutional right.

It also means given the strong ruling of the Supreme Court that future restrictions of all kinds (not just financial barriers) on access to the Courts will be subjected to the closest scrutiny.

In terms of employer-employee relations, employers who have been following a best practice approach will have little to fear.  However, it may well be the case that employees are now feeling less restricted in bringing claims forward.

It does not necessarily mean that all the matters will run the full course to Employment Tribunal as we will still have the ACAS Conciliation procedure in place.

However, it does mean that employers may be facing an increase in the level of complaints/claims coming through and should prepare accordingly.

The most effective route is of course to take proactive positions and review all discipline/grievance/equal opportunities policies to ensure that you are compliant.

It remains to be seen exactly how the UK government will respond.  It  is unlikely the fees regime will be abolished entirely.

Commentators have indicated that it is probable that the UK government will issue a consultation paper and try and implement a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its ET3.

Another interesting point is what is to be done about those people who could argue that they did not bring a claim because of the fees hurdle. Will time limits be extended? Watch this space.

Should clients require further advice on any of these issues or the implications of this breaking development then please contact either Max Winthrop or David Gibson at these offices.