By Patrick Stewart
Yesterday, the Supreme Court held that the requirement for employees to pay a fee to bring a claim before an employment tribunal was unlawful. The reasoning behind this was that the imposition of the fee was an impediment to access to justice and indirectly discriminatory against women.
The judgment leaves the door slightly ajar for the Government to seek to reintroduce the requirement in an amended form. However, any such new fee regime would have to impose substantially lower fees, probably set by reference to the value of the claim itself, and be accompanied by a far more generous means test for exemption from the requirement. There are also likely to be renewed calls for stronger rights for respondents to seek costs or for a deposit to be paid to allow an obviously doubtful claim to proceed. Whether the Government will wish to do so and risk failing in Parliament or in further litigation before the courts is open to question.
The practical effects of the judgment are:
- As from yesterday, employment tribunals will accept claims without the need for an employee to pay a fee or seek exemption. However, due to the fact that the technology has not yet caught up with the judgment, the online claim filing service has been suspended, and claimants can only file hard copy claim forms in person or by post at the few employment tribunals that accept hard copies. This will no doubt impact on those with deadlines between yesterday and whenever the online service resumes. There will probably be a test case on the question of whether deadlines should be extended for claimants caught up in the administrative impact of the judgment.
- Anyone who has paid a fee since the requirement was introduced in 2013, can seek reimbursement. We await details of how this will be claimed, and whether an employer, who has been ordered by a tribunal to reimburse the employee’s fees as part of an award, can seek repayment.
- When the fees were introduced we saw a substantial decrease in claims being brought before the tribunals. It may well be that the reverse will now occur and more claims will be brought, including perhaps an increased number of spurious claims, now the fees are not a deterrent. Employers will need to take extra care in their dealings with employment/HR issues, and to react quickly and appropriately when complaints are raised.
It seems to me possible that ex-employees whose deadlines to claim had passed before the judgment was given, and who would otherwise be too late to issue, could seek to bring a claim on the basis that the fee deterred them from issuing within the normal timeframe. They would need to show that it was not reasonably practicable to bring it earlier than now, perhaps arguing that they did not do so because of the unlawful fees regime, or (depending on the type of claim) that it would be just and equitable to allow them to submit their claim late. Any such claim would have to be issued in the very near future. There will probably also be a test case on this.
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