Employment tribunal fees abolished….What are the implications?

Employment tribunal fees abolished….What are the implications?

R (on the application of Unison) (Appellant)

v

Lord Chancellor (Respondent)

 

Judgment in this case was handed down on 26th July 2017. It has received some publicity as it is a judgment which finds against the Government of the day and it is a judgment which was immediately accepted by the Government.

In summary, the case concerns itself with the lawfulness or otherwise of the issue fees in Employment Tribunals. The upshot is that the fees were adjudged to be unlawful and as so many of such fees have been paid since the fees system was introduced (in 2013) the fees will have to be repaid. The case brings about some interesting results and food for thought :

  1. Employment claims issued since the fee system was introduced in 2013 :-

It is widely accepted that these fees will have to be repaid and that is likely to cost the taxpayer £32m.

  1. Employment claims not issued since the fee system was introduced :-

The judgment recognises that the fees were prohibitive and as a result there are some who might have wanted to claim but did not do so because of their inability to pay the fee. That introduces a discussion regarding the definition of “inability to pay”. Is that referring to the person who does not have any spare money to make the payment or should it include those who could afford it if they adjusted their ordinary spending plans. The Government argued in the case that those on low income (but not low enough to trigger a fee remission) should adjust their spending and make sacrifices to enable them to pay the issue fee. This argument was not warmly received (a) because the reality of this is much more difficult than the theory and (b) whilst spending on other necessities could be postponed, a postponement only means that payment is deferred rather than extinguished. As such, the Government’s theory was deemed to be unworkable.

From an ethical point of view, the Government’s argument was distasteful. It was shown to the Court that those members of the public who really struggled to make ends meet simply could not free up funds to pay a Court fee. However, the Government’s view was that they could afford it if they really wanted to. Of course, their case wasn’t put across in such simplistic terms but that in a nutshell was their case.

So for these hypothetical cases which were not pursued, presumably there will be resurrected claims and whilst these are long outside of the limitation period for pursuit against the employer, the potential Claimant might now be able to make a case against the Government for the lost opportunity.

This will add more to the taxpayers burden albeit that has not / cannot be quantified yet.

  1. New Employment claims :-

No issue fees will be payable in Employment cases.

  1. Other Court fees :-

Whilst the 3 heads of loss above are substantial (once fully quantified), those losses pale into insignificance when one looks at the potential impact the judgment has upon other Court fees.

At the higher end of the scale is the £10,000.00 issue fee for claims with a value of £200k+.

Of course the Government are going to seek to distinguish the civil Court issue fees from the Employment tribunal fees but the only real differences are :

  • They have been in existence for a considerable amount of time (unlike employment fees which were only introduced in 2013)
  • Other than in exceptional cases, there is not any mechanism by which employment fees can be recovered from the at fault party

These two distinctions cannot be disputed however, are they sufficient to warrant the Unison case not being followed in the event that the Court fees are the subject of a challenge ?

Well the Unison case deals mainly with two points :

  • Are the fees unlawful by virtue of them impeding access to justice ?
  • Are the fees discriminatory ?

 

  • It is difficult to see why a Court issue fee of £10,000.00 would not be deemed prohibitive for the same reasons which came out in the Unison case.
  • The 2nd point was touched upon in the Unison case and it was found therein that the fees in ET cases were indirectly discriminatory. However it was also explained that discrimination was a superfluous point as the fees had been found to be unlawful before the issue of discrimination came to be considered. However for the sake of completeness and in the event discrimination does have to be considered (if Court fees are not deemed to be unlawful for access to justice reasons) In the case of £10,000.00 Court issue fees, having regard to the fact that the majority of Claimants who have an accident which warrants damages exceeding £200,000.00 will be disabled in some way, it would seem likely that the fees will be indirectly discriminatory on grounds of disability and as such would be adjudged to be unlawful.

 

Summary

The taxpayer will be faced with a huge financial burden to deal with the losses associated with 1-3 above. In addition there are the costs of the Unison case. Further and potentially more expensive is a potential exposure outlined within 4 above.

The Government has, as a result of its indifference to its obligation to preserve our right to unimpeded access to justice, accumulated a substantial financial burden which will be the responsibility of the taxpayer for years to come.

Hopefully the Government will learn a lesson and realise that it is here to facilitate rather than profit from or deprive access to justice.

The Government and successive Governments would do well to remember some important reminders regarding the right to access to justice :

Magna Carta, Chapter 40 :

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Sir Edward Coke (in 1620 but published posthumously in 1642) :

“And therefore, every Subject of this Realme, for injury done to him in bonis, terris, vel persona [in goods, in lands, or in person], by any other Subject … may take his remedy by the course of the Law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay. Hereby it appeareth, that Justice must have three qualities, it must be Libera, quia nihil iniquius venali Justitia; Plena, quia Justitia non debet claudicare; & Celeris, quia dilatio est quaedam negatio [Free, because nothing is more iniquitous than saleable justice; full, because justice ought not to limp; and speedy, because delay is in effect a denial]; and then it is both Justice and Right.”

Lord Diplock in Attorney General v Times Newspapers Ltd at p 309:

“The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law.”

 

 

Guy Platt-Higgins LLB (Hons)

31st July 2017