The UK Supreme Court has made a landmark ruling on Tribunal fees. It decided that charging employees to bring a Tribunal claim against their employer prevents access to justice and breaches both EU and UK law.  From now on no fees will be charged by the Tribunal.

Will this mean an increase in Tribunal claims?

This is a decision that will have an impact on all employers. When Tribunal fees were introduced in 2013 the number of claims fell by 70%.  The cost of bringing a claim dissuaded many from bringing a claim. In particular it stopped those less scrupulous employees who might previously have issued proceedings in the hope of obtaining a settlement from their former employer.

It is generally agreed that employers should now prepare for an increase in claims. However, it is hoped that claims will not return to the numbers previously seen, given the impact of ACAS early conciliation – which means that it is not possible to lodge a claim at the Tribunal until a conciliation certificate has been issued by ACAS.  This is a free service which aims to see whether an agreement can be reached, with ACAS conciliating before proceedings are issued.  Conciliation can take place for up to a month with any agreement reached through ACAS being legally binding and preventing any Tribunal claim being brought.

Is this the end to Tribunal fees?

For the moment the Tribunal has stopped charging fees.

It is possible that the Government may issue a consultation paper and then introduce a replacement Tribunal fee scheme that addresses the Court’s concerns. It is likely to be a scheme where issuing fees are set at a lower level and might involve employers paying a fee when filing their ET3.

Refund of Tribunal fees

The Court made it clear that all fees charged by the Tribunal since the scheme was introduced must be refunded. This will be in the region of £27m which will need to be returned to thousands of people.  If, as a Respondent employer, you were ordered to pay an Applicant’s fees then you will receive a refund of those fees, however, a lot of paperwork will need to be gone through in order to process these refunds.

What if an employee didn’t bring a claim because of the Tribunal fees?

We are stilling wait to see whether the Tribunal will permit employees who chose not to bring a claim because of the Tribunal fees to issue those claims now.


What next?

We wait to see whether the Tribunal will permit employees who chose not to bring a claim because of the Tribunal fees to issue those claims now.

Undoubtedly there will be a period of uncertainty while the current fees regime is unravelled, and we will keep you informed as developments in this area unfold.

As an employer you need to continue to observe good employment practices within your business, particularly when dismissing staff and preventing discrimination at work. If employees are treated fairly they are, of course, less likely to bring a Tribunal claim whatever the fee for doing so.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.