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BREAKING NEWS... Supreme Courts hold that the Employment Tribunal fees regime introduced in 2013 is unlawful

The government has lost its case in the long running dispute over Employment Tribunal fees after the Supreme Court ruled that these fees are unlawful. The decision is quite simply the most dramatic judicial intervention in government policy in the whole history of employment law.

Tribunal fees were introduced in July 2013. Fees started at around £160 and increase to between £230 and £950 for further hearings. For certain claims, Claimants may have to pay up to £1,200.

Since the fees were introduced, there has been in excess of 70% reduction in cases.

Unison’s challenge is possible because Parliament never passed an Act requiring Employment Tribunals to charge a fee. This major change in the way in which employment law works was introduced through secondary legislation. When a Minister introduces secondary legislation, they must act in accordance with the legal principles laid down by the courts. Unison argued that Employment Tribunal fees restrict access to justice and that a Minister can only introduce an order which does that if the restriction goes no further than is proportionate, given the legitimate aims lying behind the decision.

The issue that really caught the attention of the Court was the sheer unreasonableness of paying a hefty Employment Tribunal fee to pursue a very small claim. The Tribunal system was designed for small claims. Unlawful deductions from wages, for example, may concern very small sums of money that are nevertheless vital to those who have not been paid what is owed them by their employer. But to take a Tribunal case to a full hearing on that issue, the Claimant has to fork out £390.

The Government argued that if a Claimant cannot afford to pay that fee, there is a remission system which may allow the fee to be waived. But Unison’s point, which the Supreme Court was sympathetic to, was that even if you could afford to pay the fee, why would you? It is foolish to spend £390 in the hope of recovering £100 in unpaid wages. All litigation carries a risk, and even if you win the case, there is a further risk that the employer will simply not pay. The fee system Unison has succeeded arguing about, has denied thousands of individuals access to justice by effectively rendering the pursuit of their claims pointless.

Another significant point of Unison’s case is discrimination, as women are disproportionately affected by the higher fees.

The Government was given a rough ride by the Supreme Court and were not impressed with the lack of thought that had gone into setting the level of the fees, assessing their impact or in setting the criteria that would determine whether an individual qualified for remission.

The Supreme Court were highly critical of the way in which fees were introduced and the effect that they have had, which led to them deciding that the Government acted unlawfully in introducing them.

This decision is dramatic and essentially says that a major government policy is illegal. The result for Unison has opened a new chapter in the Supreme Court’s willingness to limit the powers of the Government. It asserts the sovereignty of Parliament as expressed in Acts of Parliament against the power of ministers who shape laws through orders and regulations which have slipped through with minimal scrutiny.

This is quite simply the biggest decision in the history of employment law and is a very big deal. Bearing in mind the extent to which the Brexit process is likely to rely on ministers introducing secondary legislation, it could have ramifications well beyond employment law.

If you have any questions, please don't hesitate to get in touch with Sally Morris at or on 01905 610410.

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