07:43, July 26 557 0 theguardian.com

2017-07-26 07:43:03
Ministers vow to end employment tribunal fees after court defeat

The government has promised to stop charging employment tribunal costs, and refund those who had paid them, after a trade union won a landmark case to quash fees.

The announcement came after the supreme court ruled in favour of Unison, which launched a legal battle against the imposition of fees of up to £1,200.

The union said these charges were preventing workers, especially those on lower incomes, from getting justice.

The supreme court decision was made by seven justices, headed by the court’s president, Lord Neuberger. It came after the union lost in the high court and court of appeal. The action was brought against the lord chancellor and justice secretary, Liz Truss.

In a statement the Ministry of Justice said it would take “immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid”. Unison said that more than £27m of fees needed to be refunded.

The highest UK court said it based its conclusion on the fact that fees were “inconsistent with access to justice” and had resulted in a substantial fall in the number of claims being brought.

It said the fees were also contrary to the Equality Act 2010 as they disproportionately affected women.

Unison’s general secretary, Dave Prentis, described it as a major victory for employees everywhere. He said: “Unscrupulous employers no longer have the upper hand.”

Unison said the government would have to refund more than £27m to the thousands of people charged for taking claims to tribunal since July 2013, when fees were introduced by Chris Grayling, the lord chancellor at the time.

Prentis said: “The government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.

“The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too. It’s a major victory for employees everywhere. Unison took the case on behalf of anyone who’s ever been wronged at work, or who might be in future.

The TUC general secretary, Frances O’Grady, said: “This is a massive win for working people. Too many low-paid workers couldn’t afford to uphold their rights at work, even when they’ve faced harassment or have been sacked unfairly.

“Tribunal fees have been a bonanza for bad bosses, giving them free rein to mistreat staff. Any fees paid so far should be refunded as soon as possible.”

His words were echoed by Prof Nicole Busby, the acting head of the law school at the University of Strathclyde, who said it was “a very good day for access to justice”. She described the ruling as hugely significant for those who had been arguing against fees.

Employment tribunal fees were introduced by the coalition government in July 2013. Charges start at £160 for issuing a claim for lost wages or breach of contract and increase if the case is heard in a tribunal.

More serious claims, including unfair dismissal, come with a fee of £250 plus a hearing fee of £950. This means total charges come to £1,200, with appeals against decisions costing a further combined sum of £1,600.

A government report found there had been a 70% drop in the number of cases since 2013.

Busby said: “If you look at statistics on the fall in claims being brought ... there was a significant reduction in areas such as pregnancy discrimination. I am sure those individuals have been prevented from bringing claims.”

Citizens Advice said it had helped people with almost 350,000 employment issues in the last year. It said it had helped people with 72,5000 issues around pay and entitlements and 17,500 inquiries about employment tribunals and appeals.

Gillian Guy, the chief executive of Citizens Advice, said: “Employment tribunal fees have been a huge barrier to justice, but they are not the only challenge people face. What your rights are, and how to go about getting redress without resorting to an employment tribunal remains a very complicated picture, which is why we’re calling on the government to create a single fair work authority to make it easier for people to get the rights they’re entitled to by clamping down on unlawful business practice

Shoaib Khan, a human rights lawyer, said: “The government has wasted precious public funds on implementing this unlawful, discriminatory regime, and all fees it has received will have to be reimbursed, at further public cost. A large amount will also have been spent defending this case all the way to the supreme court. If this cruel scheme was meant to be an additional source of revenue for the government, then it has proved to be counterproductive in every way.”

Emma Hamnett, a partner and specialist in employment law at Clarke Willmott LLP, said: “A claimant who has paid a fee to bring an employment tribunal claim since the ... fees order came into effect in 2013, may be entitled to have their fees repaid by the government, at an estimated cost of around £32m.”

Tim Forer, a partner in the employment law team at national law firm Blake Morgan, said estimates for how much the government owes range from £27m to £31m. He said the practicalities of how the governments planned to reimburse people “remain to be seen, and it is not clear how much it will cost”.