Tribunal fees were introduced by the government in 2013. Fees started at £160 to issue claims such as wage or breach of contract claims etc and increased to £250 for unfair dismissal and discrimination claims etc, and if a case proceeded to a full hearing a hearing fee of £230 or £950, depending on the type of claim, would be payable.
In 2013 and 2014, the union UNISON brought legal challenges against the Lord Chancellor, requesting a ruling that the imposition of fees was unlawful, principally on the basis that the prescribed fees interfered unjustifiably with the right of access to justice.
UNISON’s claims were rejected at every previous stage, but the Supreme Court took a different view. It found that such a sharp drop in the number of claims warranted the conclusion that a significant number of people have found the fees to be unaffordable. Further, the fees charged could, in some cases, make it futile or irrational to bring a claim, given that some claimants seek modest or no financial awards.
The Supreme Court concluded that the fee regime effectively prevented access to justice, and although there were legitimate aims that supported the introduction of the regime, it had not been shown that the fees charged were the least intrusive means of achieving those aims. As a result, the Court said the fee regime was unlawful from the outset.
The effect of this decision is that fees are no longer payable in employment tribunals and the EAT, and the government has announced that fees paid since their introduction will be reimbursed. It remains to be seen whether a new fee regime will be introduced in the future, but until then, fees cannot be imposed.
Following this decision, a Case Management Order was made by the Employment Tribunals which stays (i.e. puts on hold) all claims and applications which rely on the fact that the employment tribunal fees regime was unlawful, until a decision has been made about how to handle them. Although it is currently not clear exactly which claims and applications this Order relates to, it appears to be a blanket approach to all claims and applications made by individuals whose claims were struck out for not paying their fees, or who are arguing that they should be able to bring claims now which are out of time because they were previously deterred by the fees regime.