Employers could face in an increase in tribunal claims, following the Supreme Court's historic ruling that the fee regime introduced for Employment Tribunal and Employment Appeal Tribunal claims in July 2013 is unlawful. The Court considered that the level of fees imposed had the effect of preventing access to justice, as they were unaffordable for low and middle income claimants and made it futile or irrational to bring claims for modest amounts or non-monetary remedies. (R (on the application of UNISON) v Lord Chancellor)
As of 26 July 2017, fees are no longer payable by claimants and the Government has confirmed that fees paid in the past will be refunded. Individuals who were unable reasonably to afford the fee to bring a tribunal claim after July 2013 could now seek to argue that the tribunal should extend time to allow late claims.
The removal of fees is of particular benefit to multiple claimants, given the EAT's recent ruling in Farmah and others v Birmingham City Council that equal pay claims involving claimants performing different jobs cannot be included on the same claim form under tribunal rules. The rules permit multiple claims to be combined only if they are based on the 'same set of facts'; the EAT held that the 'facts' included the work that the claimant and comparator were doing. The fee regime provided a significant cost incentive for groups of claimants to use a single claim form, with a single fee, where possible. The removal of fees therefore reduces the costs for future multiple claimants needing to use individual claim forms post Farmah. Further, the inclusion of multiple claims in breach of the rules is an irregularity which the tribunal has a discretion to waive but, according to the EAT in Farmah, the claimants' desire to minimise tribunal fees was not to be regarded as sufficient reason to exercise that discretion. That aspect of the ruling may now need to be reviewed, particularly in light of previous practice where such irregularities were indeed often waived.
The judgment is discussed in more detail in our blog post here. It does leave open the possibility of the government devising a different, lawful fees regime, perhaps involving fees at a lower level and/or pegged to the value of a claim, and/or payable by the employer at key stages during the tribunal process. However, given its other priorities, it seems unlikely that the Government will have the time or political support to introduce a revised scheme in the near future.