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Supreme Court rules against government over employment tribunal fees

The government has lost its case in the long running dispute over employment tribunal fees after the Supreme Court ruled that these fees are unlawful.

In a surprise ruling the Supreme Court overturned judgments by both the High Court in 2013 and the Court of Appeal in 2015 that went in favour of the government. Instead it unanimously allowed an appeal by trade union Unison which had argued that the fees were unlawful.

A two-day hearing on the case was heard at the Supreme Court in March this year.

Tribunal fees were introduced in July 2013. Fees start at around £160, and increase to between £230 and £950 for further hearings. For certain claims claimants may have to pay up to £1,200.

Unison claimed that the fees prevented thousands of employees, particularly those on low incomes, from getting justice if they are badly treated by their employers.

The case also asked whether fees breached the EU law principle of effectiveness, and whether the policy is indirectly discriminatory, claims which the Supreme Court backed up.

The government previously indicated it would repay claimants who had already paid a fee, it is thought this will cost around £32 million.

Claire Dawson, head of employment at Slater and Gordon, said: ’This is a great outcome for employees and workers who have in recent years been discouraged from pursuing potentially viable claims because of the fees payable.’

The Ministry of Justice has yet to respond to the judgment.

Beverley Sunderland, managing director, Crossland Employment Solicitors, predicted that the government’s next move will be to try and introduce legislation to properly impose fees.

’But, as they do not have a majority and given the clear and unequivocal statistics of the impact of fees on the numbers of claims brought, it is difficult to see how any such legislation will get through parliament as no MP, whatever their politics, is likely to vote for it,’ she added.

Diane Gilhooley, head of the global HR group at Eversheds Sutherland, echoed those thoughts and said the government would likely try to move quickly to put in place a ’more proportionate replacement fees scheme’.

‘As for those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid. What is not yet clear, however, is whether that undertaking extends to compensating employers who have been ordered by tribunals to reimburse fees paid by claimants,’ she added.