Following UNISON’s legal challenge, the Supreme Court, last week, ruled that employment tribunal fees are unlawful because they price workers out of accessing justice and discriminate against women.
This means that employment tribunal fees no longer apply. What’s more, the government will have to refund any fees paid since 2013 — at a cost of about £27m.
The Supreme Court unanimously upheld each of UNISON’s arguments against employment tribunal fees. They found that the Fees Order:
- Restricted access to justice;
- As the Supreme Court said, “Fees must be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by forgoing an acceptable standard of living, the fees cannot be regarded as affordable”.
- Limited Parliament’s role in granting employment rights and how they should be enforced;
- And, discriminated unlawfully against women
- As the Supreme Court said, “The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage, because a higher proportion of women bring type B than bring type A claims.”
The Supreme Court judgment smashes down a financial barrier which was pricing workers out of justice. When tribunal fees of up to £1,200 per case were introduced in 2013, it very quickly became clear that many working people could no longer afford to uphold their rights at work. The number of cases taken has dropped by nearly 70%. Low-paid and insecure workers all but lost their ability to take cases, whether on non-payment of the national minimum wage, unauthorised deductions from pay, or even unfair dismissal. Only union members and the well-off were guaranteed access to justice.
And the number of discrimination cases has gone through the floor too (see graph below), hurting women, workers with disabilities, black and minority ethnic and LGBT+ workers who have been unfairly treated or harassed.
The outcome is one of the most significant employment law judgments for a generation. It is a massive step towards ensuring that working people can enforce their employment rights.
This decision will also have a positive knock on effect leading to more disputes being resolved in the workplace. It’s been widely recognised, including in evidence given to the recent government review on tribunal fees, that bad bosses have become emboldened due to workers being less likely to pursue an employment tribunal claim.
Huge congratulations to UNISON for this landmark victory. This victory is a massive step to improving working peoples’ ability to enforce their employment rights. And it is a great example of the value of working people standing together in trade unions.