The union Unison has won a major court victory against the Government over controversial fees for taking claims to an employment tribunal. The Supreme Court unanimously ruled that the Government was acting unlawfully and unconstitutionally when it introduced the fees four years ago.Unison said the decision means that employment tribunal fees will now be scrapped.

Denied access to justice

Ed Stacey, partner and head of employment at PwC, said of the case:  'Since the introduction of fees in 2013, there has been an overall decline in the number of claims being brought. The real issue was whether the decline in those claims meant individuals were being denied proper access to justice and/or potentially being discriminated against. Contrary to the Ministry of Justice's post-implementation of fees review conducted in January 2017, the Supreme Court has agreed that the imposition of fees has denied proper access to justice in breach of EU law and it has also had the effect of indirectly discriminating against certain groups.'

Unmeritorious claims

He added that whilst this was a welcome decision 'by those who champion workers' rights... this decision may make employers fear having to face an increase in unmeritorious claims that the fees have successfully deterred.  The Tribunal system may also fear how they will find the resources to cope with an increase in claims that will surely follow.'

Middle ground

Helen Crossland, employment partner at Seddons, added: 'Today’s judgment may never have happened had Tribunal fees simply been pitched lower. The hope now is that a middle ground can be found which balances claimants’ access to justice with employers’ rights not to face a barrage of hopeless claims. Unless the judgment is overturned the emphasis should be on shoring up Judges’ ability to strike out claims early doors and for the Tribunal to be able to assess and weed out low prospect claims.'    

Courts prepared to intervene

Ruth Kennedy, barrister in the employment team at 2 Temple Gardens said of the judgment: 'The Supreme Court’s recognition today of the profound impact that the Fees Order 2013 has had on access to justice is a huge step forward for UK employment law. It also clearly demonstrates that the courts are prepared to intervene when the Lord Chancellor seeks to use his powers, using blunt tools to reduce the cost to the state of facilitating litigation.Now the Lord Chancellor will have to honour his predecessor's promise to pay back the fees already paid, which is sure to be a costly endeavour. However, this ruling still does nothing for the claimants that would have brought claims, but for the fees.'