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The Supreme Court has ruled that Employment Tribunal fees are unlawful as they prevent access to justice and are indirectly discriminatory.

The Employment Tribunal fee regime was introduced in 2013. It meant that claimants had to pay both a claim fee and a hearing fee when bringing a claim in the Employment Tribunal.

The government introduced these fees to encourage earlier settlements between an employee and employer and to deter people from bringing groundless claims.

Since the introduction of the fee regime, the number of claims brought to Employment Tribunals has dropped by 70%.

The Supreme Court decision

The Supreme Court held that the fees interfere with individuals rights of access to the tribunal system.

It was also held that the fees discriminated against women and other protected groups indirectly, as they are more likely to bring discrimination claims which attract a higher fee.

The Supreme Court noted it is much cheaper for individuals to bring a claim for a small sum of money in the Small Claims Court compared to bringing a claim in the Employment Tribunal.

What does this mean?

This decision means that there will be no fees when filing or pursuing claims in the Employment Tribunal – the fees have been abolished. This came into effect immediately, from 26 July 2017.

It is likely the fees will be replaced in the future, by way of a different or lower fee regime.

As a consequence, a rise in the number of employment claims is expected. Also of concern for employers is that individuals who may previously have chosen not to pursue a claim due to the fees involved may now look to seek an extension of time to bring their claims.

What happens to fees that have already been paid?

Fees which have already been paid will be reimbursed, however, at this stage, it is unclear as to how this will be achieved.

Unanswered questions include whether claimants will need to request this reimbursement, and what will happen in circumstances where the claimant recovered fees from the respondent by way of a costs order or part of a settlement agreement. We will issue a further update once the position is made clear.

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