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Supreme Court rules tribunal fees as illegal

The Supreme Court rules the 2013 employment tribunal "Fees Order" as contravening both EU and UK law.

In a landmark decision on July 26 the Supreme Court has ruled that employment tribunal fees were unlawful – and have ordered the government to reimburse £32 million to claimants.

Fees of up to £1,200 were imposed on Employment Tribunals (ETs) and Employment Appeal Tribunals (EATs) by the coalition government back in 2013, which has now been deemed illegal by Britain’s highest court – ruling the fees contravene both EU and UK law.

Most employment rights can only be enforced in ETs and EATs. Up until the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (“the Fees Order”) came into force on July 29 2013, a claimant could pursue proceedings without paying any fees. The aim of the Fees Order was to transfer part of the cost of tribunals from taxpayers to users of their services and reduce the number of false claims.

In their ruling the court said: “The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.”

It continued: “The alternative way in which the discrimination case is put is that charging higher fees for discrimination claims is indirectly discriminatory against women, who bring the majority of such claims, and others with protected characteristics who also bring them. There is a superficial attraction to this argument. It is now clear that setting the fees at the rate they have been set has had a deterrent effect upon discrimination claims, among others. It is also now clear that it has deterred meritorious claims at least as much as, if not more than, unmeritorious claims.”

Britain’s largest Trade Union, Unison, was successful in winning its case – citing Chapter 40 of the Magana Carta 1215, which recognises the right of access to the courts. This remains on the statute book in Chapter 29 – “We will sell to no man, we will not deny or defer to any man either Justice or Right.” As the court states in its report, those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.

Responding to the outcome of the case, Unison General Secretary Dave 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 in 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 is a major victory for employees everywhere.”

What are your thoughts on this latest ruling? Would you be deterred by big fees if you had been subject to illegal treatment in work? Get in touch via our social media channels:



Publish date:                     2nd August 2017

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