27 July 2017
Today, in a humiliating U-turn for the Government, the Supreme Court ruled that Employment Tribunal/Employment Appeals/Tribunal Fees had been unlawfully introduced in July 2013.
This is an important decision. The fees introduced by the then Lord Chancellor, Chris Grayling, ranged from £160 up to £1,200 and they had a profound impact on the number of cases taken before an Industrial Tribunal. This was not surprising. Having lost their job individuals were then faced with finding these fees at the very time of their greatest financial difficulty and as a result the Trade Union who brought this action, Unison, claimed that many thousands of employees, particularly those on low incomes were prevented from getting access to justice if they were badly treated at work. The Supreme Court agreed that these fees were discriminatory.
The case highlights, once again, an individual’s access to justice. It is all right having rights in place to protect people but if you can’t enforce those rights then they are meaningless. This point was summed up by Mr Joe Egan, the President of the Law Society, when he said “justice must never be a luxury for those who can afford it, it is a right we all share “.
This is a great outcome for employees who have in recent years been discourages from pursuing proper and appropriate claims because of the fees payable.
The Judgement can be read here: bit.ly/2eMIDnw
The government is now going to have to re think how the Tribunal system is funded and the role that fees will have in this in the future.
For many this is a welcome development. There was a view that employers conduct towards employees may have changed for the worse if thinking that there was little the employees could do about it. This may lead to fairer treatment by employers to employees in the future. On the other hand expensive litigation needs to be funded somehow and this is something the Government are no doubt addressing now. 
This also may have important implications for other areas of civil law. In particular, in relation to clinical negligence, the fees to issue proceedings have increased out of all proportion in recent years meaning that those who have been the most badly affected, and maybe least able to look after themselves, now have to pay fees of up to £10,000.00 a massive increase in recent years. A fee remission scheme helps those on the lowest incomes but those in the “squeezed middle” do not get such help and may be dissuaded from bringing legal action when it is most needed. There is a thought that Defendant insurers know this and reject good claims knowing that many Claimants will not be able to afford the fees necessary to instigate proceedings. In due course these Court Fees may also come under scrutiny and, if so, this would be a welcome development to increase access to justice for those most severely injured in clinical negligence situations.
Simon Ramshaw commented that anybody who thinks that they may have a valid clinical negligence claim, but is put off by the potential costs risk should contact Williamsons at first instance to discuss these things through.
