The hot news in Employment Law this week is that the Supreme Court has today upheld the application of UNISON in relation to the question of Tribunal fees.

Just to remind you, the position under the fees regime was that employment claims were classed into two types; Type A and Type B Claims. The fee for Type A claims was £160 and for Type B Claims was £250. There was also a hearing fee payable of £950 by a Claimant.

The Supreme Court has determined that the payment of Tribunal fees is unlawful and that the requirement for a Tribunal fee will be quashed. In addition, the Supreme Court has said that all fees paid since 2013 and the judgement will have to be refunded by the Lord Chancellor’s department.

On a practical level, the decision does prompt questions. How and when will the refund be paid?

One employment law commentator has suggested that thought will have to be given to re-writing the current Tribunal system and dealing with the online submission of claims. That same commentator has also suggested that it is unlikely that the fees regime will be abolished in its entirety. It may be that the government will bring in a new fees regime where fees are at a lower level and there is a fee payable by employer when an employer lodges its response to a claim.

The big question that remains though is what will happen to those people who chose not to bring a claim because of the fee regime. Will Tribunals be open to the suggestion that it was not reasonably practicable for a claimant to bring a claim when they were prevented from doing so because of an unlawful fees regime? Who’s going to be brave enough to be the first person to bring that challenge?

In my opinion, the abolition of the fees regime is a welcome decision.

The fees regime was introduced to cut down the number of spurious claims that were being brought. The fee regime could be said to be a challenge to a claimant to put their money where their mouth is. My experience of the fees regime was after going through ACAS Conciliation, many employees were then not able to go through with a claim which had genuine prospects of success because they were not able to meet the cost of the Tribunal fees.

The flip side of that was that many employers were not willing to properly consider settlement through ACAS Conciliation because they did not think that the complaining employee would be able to afford the Tribunal fee so lip-service would be paid to conciliation. The view being taken that they would wait to see if there was a claim and settle at that point. With the abolition of the Tribunal fees, I would suggest that it would be a foolhardy employer who would now take the same approach to ACAS conciliation.

If you have any queries about any aspect of employment law, then please contact Julie Sullivan in our employment team on 01383 721 621.