Employment fees—what happens now?

The Supreme Court’s high-profile decision that employment tribunal and Employment Appeal Tribunal fees are illegal is ‘a masterpiece of judicial analysis of the constitutional right of access to justice’.

Writing in NLJ, Chris Bryden, 4 King’s Bench Walk, and Michael Salter, Ely Place Chambers, laud the ruling, in R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51. The response, in some quarters, condemning the decision for opening the floodgates to unmeritorious claims ‘is comprehensively debunked by a glancing familiarity with the judgment itself,’ say Bryden and Salter.

‘This demonstrates that the statistics do not bear out the argument that weak unmeritorious claims were weeded out by the fees. The success rate of tribunal claims barely shifted at all despite the (almost) 80% reduction in claims brought; if the argument that fees deterred weak claims was sustainable then the percentage success rate should have increased dramatically.’

However, the implications of the judgment, in terms of repaying fees paid by litigants, may be complicated to sort out. In the longer term, moreover, the funding of the tribunal system will have to be addressed. See `Supreme Court gives tribunal fees the push' in this week's issue.