Back in 2013, fees became payable to Tribunals in order to start a claim and then bring it to a hearing.
The government had hoped that the introduction of fees would help reduce claims which were started on the basis that an employer would settle because it was easier to settle than to defend (the ‘man in the street’ would blame a no win – no fee culture for an excess of claims).
Additionally, the government wanted to help fund the system through the application of fees.
In reality, many employment claims are for relatively low sums – for example, if your employer hasn’t paid you all your holiday pay. These sorts of claims became effectively unenforceable as no employee would bring a claim for a day’s pay, if the fee to bring that claim cost two or three times as much.
As a result claims to the Employment Tribunal dropped by 79%.
The Supreme Court has ruled that the fees were unlawful for a number of reasons but most importantly because they effectively prevented access to justice, the rationale being that laws were worthless if they could not be enforced.
When considering these proposals in the first place the government assessed that access to justice was only important for the two parties to the case. The Supreme Court disagreed and stated that access to justice was important for everyone, because without a belief that rights could be protected by going to court, people may not act in accordance with the law, especially if they believed they would never be forced to.
The Supreme Court also held that the fees were indirectly discriminatory as they affected woman more than men, with no justifiable reason for that discrimination. The fees were also held to be in breach of EU law.
The government had provided no evidence as to why fees had been set at the level they had and had acted under the mistaken belief that the higher the fee, the more money would be raised when of course, like everything else, demand is affected by price. The fees generated therefore had been nothing like as high as anticipated.
Fees ranged between £390 and £1,200 with Discrimination cases costing more (for claimants) due to the complexity and time hearings took.
From today fees do not need to be paid and previous claimants can also apply for a refund….in real terms, this is a huge change in employment law.