Supreme Court declares Employment Tribunal fees unlawful Added in Employment by Paul Tapsell The decision of the Supreme Court on the 26 th July 2017 in R (ex parte Unison) v Lord Chancellor  UKSC 51 marks the very welcome end (at least at the moment) of fees in Employment Tribunals, declaring the Fees Order which introduced the fees “unlawful under both domestic and EU law because it has the effect of preventing access to justice” and also discriminatory; it was therefore “unlawful ab initio” (because all lawyers love a bit of Latin and “unlawful from the outset” wouldn’t have the same ring). The Effect of Fees The judgment includes a comprehensive rubbishing of the thinking behind the introduction of the Fees, pointing out that it had reduced the number of claims by between 66 and 70%, a “fall in the number of claims [which] has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable”. Key Objectives The Court found that the Fees had also failed to meet the key objectives for their introduction, i.e. to transfer the cost of the process from the taxpayer to the people who “used” the Tribunals (or caused it to be used) – the intention was to recover a third of the cost of the “service” whereas fees contributed less than 20% of the cost. to reduce the number of unmeritorious claims – in fact the number of successful claims went down and the number of unsuccessful ones went up. encourage early settlement – again it reduced the number of early settlements as employers often waited to see if the employee could afford to issue a claim or pay the hearing fee before making any offer. Naked Litigation The Supreme Court pointed out the “users” of Tribunals are usually there by circumstances rather than choice (e.g. they have been, or believe they have been, unfairly dismissed or discriminated against) and found that the Fee arrangements ignored “elementary economics and common sense” because it underestimated the “price elasticity of demand”. The Court was not
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- Fall '16
- Farah Nabilla
- Law, Supreme Court of the United States, Lawyer, Lord Chancellor