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What to expect now that Employment Tribunal fees have been ruled unlawful.

The Supreme Court’s ruling that the Employment Tribunal fees introduced by the Government in 2013 were unlawful has sent shockwaves through the world of employment law. It is important to appreciate that the Court did not simply ask the Government to amend its scheme or come up with a new one in due course – they ruled that all of the fees collected over the past four years were unlawfully levied.

Not only does that mean an immediate end to the requirement to pay a fee before bringing a tribunal claim, it means that all of those who have paid a fee are due a refund.

Struck out claims

Other consequences of this momentous decision are also becoming clear. Any employee who had his or her claim struck out because the fee was not paid – either when they failed to obtain remission on the grounds of their low income or because having paid the initial fee they subsequently failed to pay the full hearing fee – will inevitably have their claims reinstated.

Employers could perhaps try to argue that a fair hearing is no longer possible in cases where considerable time has elapsed, but they are likely to face an uphill battle in getting these resurrected cases struck out on that basis.

Late claims

We are also likely to see a surge in late claims from those who were deterred by the fees from bringing a claim within the time limit. We should get a sense in the next few months of how tribunals are approaching these cases.

Longer term, the question is whether the number of tribunal claims will bounce back to previous levels. The official statistics issued quarterly by the Courts and Tribunal Service will certainly make for interesting reading in the coming months.

Employers – next steps

Meanwhile employers will have to factor into their decision making the increased likelihood that employees who believe they have been unfairly dismissed or discriminated against will challenge the employer in the Employment Tribunal.

This makes it even more important to follow appropriate procedures with care and take proper advice before making potentially risky decisions.

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