Bristol employment law specialists Menzies Law have described this week’s Supreme Court’s judgment on employment tribunal fees as “possibly the most important employment law decision of our lifetime”.
In its landmark ruling the court allowed trade union Unison’s appeal against the fees, saying the government had acted unlawfully and unconstitutionally when it brought in them in four years ago. 
The number of cases lodged with employment tribunals has fallen by 79% since the fees of up to £1,200 were introduced. The government had claimed charging would prevent malicious or weak cases but Unison’s accusation that it prevented workers accessing justice was accepted by the court.
Menzies Law said the ruling would have a “seismic impact on the world of employment tribunal claims”.
Director and employment law expert Luke Menzies, pictured right, said: “It is an extremely important and historic decision – and arguably the most important employment law decision in our lifetime.”
But Kevin Jones, pictured below, a partner and specialist in employment law at national firm Clarke Willmott’s Bristol office, claimed that employers could now see an increase in tribunal cases brought against them.
“It’s good news for workers who faced these fees at a financially vulnerable time having just lost their job,” he said.
“However, employers will now see a rise in the number of tribunal claims threatened and then brought and a return to a more litigious working culture.”
The Supreme Court’s reasons for this decision include: 
- Employment Tribunal claims are important for society as a whole, not just the individuals involved.
- Tribunal fees prevent access to justice – as evidenced by the sharp and sustained drop in the number of tribunal claims and the hypothetical examples presented in evidence by Unison of how fees impacted on claimants in low-to-middle incomes.
- The tribunal fees regime amounts to an unjustified limitation on the ability to enforce EU rights - i.e. those claims based on EU law – and are therefore unlawful under EU law.
- Tribunal fees do not appear to have improved the proportion of cases which have settled through ACAS.
- Tribunal fees are not justified as a necessary intrusion on the right of access to courts. The government had not produced evidence to show why the fees had been set at the level they had and had falsely assumed that the higher the fee, the higher the revenue. This did not take into account that no revenue is generated if no claim is brought.
- The government failed to show that fees met their objectives, such as deterring weak claims.
- Tribunal fees are indirectly discriminatory by charging higher fees for type ‘B claims – which include discrimination claims – than type ‘A’ claims.
Immediately following the ruling the government stopped charging fees for claims in the tribunals and in any appeals and all fees paid in the past will be reimbursed by the Lord Chancellor’s Department – leaving the government facing an estimated cost of £32m.
However, Mr Menzies, who is a barrister and solicitor, warned that tribunal fees may be re-introduced in the future.
“What we do know is that there are no fees until further notice and given the clear message in the judgment if tribunal fees are introduced again they are likely to be set at a much lower level than they were at up until this morning,” he said.
