In a far reaching decision, the Supreme Court today ruled that the current tribunal fees are unlawful under both common law and EU law and the order bringing them into force must be quashed with immediate effect.
In the leading judgment, Lord Reed highlighted the constitutional right of access to justice, emphasising that each citizen must have recourse to the courts if their rights are infringed. While the imposition of tribunal fees was in pursuit of the legitimate aim of making resources available for the judicial system, the fee levels set unlawfully impeded access to justice. Firstly, this issue arises because the fees are not at a level reasonably affordable for some people and there is a real risk that individuals will be sufficiently deterred from bringing a claim. Secondly, for lower value claims, the payment of the fee can make bringing the claim futile - if a claim is worth £500, then only a claimant certain of his success would pay a fee of £380 to bring it.
Lord Reed further found that as the fees denied individuals the ability to enforce rights conferred by EU law, they breached the EU principle of effectiveness.
Lady Hale’s judgment confirmed that in any event the fees were indirectly discriminatory due to the higher fee for certain types such as proscribed discrimination and those typically brought by women - such as unfair dismissal due to pregnancy.
The Supreme Court has not yet set out remedies, but the government had given an earlier undertaking to repay all fees if they were found to be unlawful and has since confirmed that it will do so. It remains to be seen if the government will seek to introduce an alternative fee regime. In the interim, the number of employment tribunal claims is expected to rise.