Supreme Court rules that Employment Tribunal Fees are unlawful

26th July 2017

In a landmark decision, the Supreme Court rules that Employment Tribunal Fees are unlawful. Claimants will no longer have to pay any fees to bring or pursue Employment Tribunal claims or appeals to the Employment Appeal Tribunal. In addition, any fees paid since 1 July 2013 will be reimbursed. This decision comes as a surprise to many, after the original challenge to the fees was rejected at each earlier stage of the court process, including by the Court of Appeal.

What does this decision mean for potential claims?

The immediate effect is that the Fees Order is quashed so that Claimants will no longer have to pay fees from today for:

• any claims brought in the Employment Tribunal; or
• any appeals submitted to the Employment Appeal Tribunal.

There is also a possibility that Claimants may seek to bring claims after the normal time limit for claims has expired, by arguing that they could not afford to bring their claim due to the cost of the fees.

What does this decision mean for claims where fees have already been paid?

This decision means any fees previously paid by Claimants for Employment Tribunal claims or for appeals to the Employment Appeal Tribunal will be reimbursed. However, we do not yet know how the administrative side of this process would work in practice.

Can this decision be challenged?

This decision is a Supreme Court decision. There is no right of appeal from a Supreme Court decision on UK law, although an appeal to the European courts may be possible on points of European law. However, the government could seek to introduce further legislation with a revised fee scheme.

We will review the implications of this decision in more depth in a later briefing. If you have any questions in the meantime, please contact David Smedley or Andrew Rayment.