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The Government defeated... again: Employment Tribunal Fees (The Aftermath)

As many will no doubt be aware, there has been recent litigation regarding the legality of the fees that have been imposed by the Government on those who wish to access the Employment Tribunal to hear a dispute. Whilst the decision to litigate in the Supreme Court was made some four months before this article was published, the judgment of the Supreme Court was only released on 27th July 2017. It's quite plain to see from that alone, that this was going to be a landmark decision and the Court had to consider a variety of factors.

Further, the hearing was heard by seven justices, led by Lord Neuberger, which illustrates just how important this was in a legal capacity. It should ben noted that the Union (the Claimants and thus the ones bringing the case) lost in the high court and the court of appeal but was been given permission to argue its case before the supreme court. Commenting on the result, Unison’s general secretary, Dave Prentis, said it was a major victory for employees, stating that: “Unscrupulous employers no longer have the upper hand."

It's well known that the Government were utterly humiliated as a result of the decision, and now have to make yet another U-turn in order to overhaul of employment tribunal fees after being told by the Supreme Court that the fees were simply inconsistent with access to justice.

Many who are not involved in the legal world would pose the question "Why should anyone be interested in such a development?". The answer to that is quite simple really - if affects us all. An overwhelming majority of those in the UK are employed as opposed to self-employed (which I discussed in a previous post, found here). The argument that was made by Unison was simple: the high cost of claims against employers was discriminatory because it prevents low-income workers from obtaining justice. This seems entirely reasonable in the circumstances: the UK is going through a period of austerity and cuts by the Government, and many people simply do not have between £390 up to an eye-watering £1,200 laying around to challenge an unfair dismissal from work.

However, since the decision of the Supreme Court, there have been some interesting developments from the political world.

Firstly, Ministers have accepted the decision, and promised to end such fees, and quite rightly so. It is quite clear from a wide range of statistics that since the introduction of fees to the Employment Tribunal, there has been a massive decline in the use of that particular system. In January, the government produced its long-awaited review of the impact of fees, showing that there had been a 70% drop inthe number of cases since 2013. Whilst a report created by the Ministry of Justice (MoJ) blamed this on the economic downturn, the Commons justice select committee dismissed such claims, making it painstakingly obvious that the issue was down to the sheer expense of access to justice. This was a particular issue that the Supreme Court were concerned with (see paras 87 and 88 of the judgment here).

Secondly, the MoJ said it would take “immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid”. Unison said more than £27m of fees need to be refunded in this instance, which is a substantial amount of money for anyone - and further drives home the point that this has had such a large impact on the wider community. This stems back to when fees were first introduce in 2013.

On top of all of this, it has been argued that the decision could in fact help older claims. For those who were impacted by the costs, and subsequently chose not to pursue a case as a result, could potentially suggest that the tribunal to use its discretion to hear it, even if such a claim is "out of time." Whilst this is little more than a hypothetical situation at this moment in time, and so there would need to be a test case to see how the tribunal would react to such a submission. It is likely that the approach adopted will be on a case by case basis, by exploring the factors that affected such a decision not to continue with the claim.

What is apparent from this judgment is that we are likely to see a significant rise in the use of the Employment Tribunal once again. Arguably, this goes some way in levelling out the playing field in that individuals aren't priced out of bringing an action. The next issue is then whether they are able to compete with their employer's financial strength in obtaining legal representation. In many cases, this is sadly not the case. However, it certainly does strengthen the prospect of obtaining legal representation, as costs are not being directed to making the application in the first place.

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