Background

In July 2013 the former Lord Chancellor Chris Grayling introduced scaled fees for issuing a claim in the Employment Tribunal. Last year’s Ministry of Justice figures show that the number of employment claims dropped in July 2013 from just over 7,000 to just above 1,000 immediately following the introduction of the fees.

The trade union Unison brought a claim on the basis that the fees were unjust.  In the High Court in 2013 Unison lost, as did they again in the Court of Appeal in 2015. 

This month 7 members of the Supreme Court unanimously found in favour of the union and ruled that the fees were introduced unlawfully.  The Supreme Court has also ruled that the fees breached the principle of effectiveness under EU law and that the policy was indirectly discriminatory.  The Justice Minister Dominic Raab has stated the government will take immediate steps to stop charging fees in Employment Tribunals and will be providing refunds to those who have paid tribunal fees, the refund is expected to cost around £32 million.

It is foreseeable that the current government will now seek to introduce a bill to ‘properly’ impose lawful fees on Employment Tribunal.  In the meantime the question must be asked what of the 6,000 other cases per year, which appear to have not been brought as a result of the fees? 

The loss of opportunity to bring a claim represents a grave injustice for those potential claimants and it can be envisaged the government may wish to introduce a limitation amnesty for those claimants who could not afford to bring their claims.  Alternatively, the government might face a slew of claims for the loss of opportunity of those claimants who did not proceed.  At this stage it is unclear what the fall out of this decision will be on those unpursued claims.  However, what is clear is that we can expect to see the number of claims brought in the Employment Tribunal to return to their pre-fees levels.

This decision must also cause the government to pause for thought on civil fees. In matters involving mesothelioma the fees can be in the region of £10,000. How these fees can be maintained in light of this decision and the recent announcement that Her Majesty's Courts and Tribunal Service in in £100 million of surplus (here) is hard to see.

What this means for you

What this means for those practitioners and file handlers with a stress case load, is that more claims are likely to be  brought as double edged claims with both personal injury and employment facets

A copy of the judgment is available here.