Fees were introduced by the Employment Tribunals and the Employment Appeal Tribunal in 2013. The changes were made against a background of fiscal consolidation and a requirement for the Ministry of Justice to reduce its annual expenditure. In this context, the Government argued that it was right to ask claimants to contribute towards the cost of operating the Tribunals. This was good news for employers who had long argued that the Tribunal system failed to discourage vexatious and weak claims. For the employee, the low costs involved, and the fact that self-representation was the norm, meant there was little to be lost, in financial terms, from making a claim. Since the fees were introduced the Tribunals have seen a 70% reduction in the number of claims made.

Unison have campaigned through the Courts since 2013, saying that the fees were unlawful and yesterday the Supreme Court agreed with them, saying “Employment Tribunals are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs and those who are vulnerable to long-term unemployment”. The fees, the judges concluded, were preventing access to justice.

So what will happen now?

The Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor’s Department.  This is easier said than done – many successful claims will have had fees ordered to be paid by the Respondent, and there will probably need to be a manual trawl of all decided cases to establish who should rightfully be refunded.

Mike Spicer, Director of Research at the British Chambers of Commerce (BCC), summed it up nicely when he said:-

“Today’s ruling will leave employers concerned about a return to the past, when despite winning the majority of cases, companies would often settle to avoid a costly and protracted process even when their case was strong.

“There is now a need for the Government to work with all interested parties, both to ensure the ruling is respected, and to ensure that employers and employees alike can have confidence in the Tribunal system in future.”

Whilst claimants will still have to notify ACAS of their intention to lodge a claim in the Employment Tribunal, we predict that this decision will lead to more claimants pursuing their claims through the Tribunals again, if it can’t be settled through early conciliation.

Should you get a call from ACAS advising that an employee or former employee has contacted them or indeed receive paperwork (ET1) from the Employment Tribunal advising that a claim is being made and need advice on this matter, then please call Practical HR on 01702 216573 or email