Supreme Court decision on Unison’s challenge to the lawfulness of fees regime

July 27, 2017

By Alfred Weiss

No doubt by now all Employment lawyers are aware of what must be the most unexpected (and dare I say widely welcomed) announcement in the employment law world for years.

Highlights of the decision include:

  • The rule of law may not be reduced by statutory instrument operated by a minister
  • The Employment Tribunal Fees order does prevent access to justice and so is ultra vires
  • Lady Hale concluded the charging of higher fees for Type B claims (that included discrimination claims) was indirectly discriminatory

What is happening now?

It appears that Tribunals will not accept payment for ET1s lodged in person.

Presumably the portal will have to be altered as soon as possible so ET1s submitted online will not require payment.

Somehow litigants who paid fees since the introduction of the fees regime to date will have to have these refunded.

One speculates that the powers that be will wish to implement some kind of alternate fees regime I as opposed to allowing a return to the historic non-fees regime.  However, given the Supreme Court’s comments about the limits of statutory instrument in that it cannot deny access to justice, one wonders whether ministers will be ‘brave’ enough to introduce an alternate fees regime via statutory order.  One would have thought that Parliament will be far too busy with Brexit to find time in the short or medium term to debate legislation about Employment Tribunal fees.  Perhaps in the short to medium term there will be no fee structure at all in place?  Alternately, one would have thought that any alternate fees regime brought in via statutory order would have to involve significantly lower fees than those presently in place otherwise it would be at risk of further challenge.

Watch this space…

Alfred is a member of the employment department at Exchange Chambers.