Well having been tipped off in advance that the Supreme Court was to hand down its Judgment in the Unison challenge to Tribunal fees, I was simply in the dark as to the news storm this would create. I will admit I was surprised that the Supreme Court decided that ET fees were unlawful. I had not seen the latest evidence but understood really nothing had changed and other Courts had dismissed this evidence already.
Of course, we have far more data now than we had when the challenge was first made as fees have been in place for almost three years but I have to admit I was taken by surprise by the Judgment. A helpful press summary has been prepared for those who cannot face the whole judgment and can be found here. For those that want more detail, the full judgment of the Supreme Courts decision on ET fees can be found here.
Taking it back to the beginning as a refresher, the aim of ET fees was to try and transfer part of the costs burden from taxpayers onto the users, to deter unmeritorious claims and to encourage early settlement. A fixed fee is payable when a claim is issued and then a hearing fee closer to the final hearing. The value of this fee is only determined by the type of claim A or B and whether you are personally eligible for fee remission in whole or part. There is no link to the value of the claim.
In very short summary, the Supreme Court has held that the ET fees regime is unlawful. The fees are said to interfere with access to justice for both common law and EU laws and contravene the EU law guarantee of an effective remedy before the Tribunal. Part of the concern is that unlike the County Court fees there is no differentiation according to the value of the claim. Fees also discriminate against women as women are put at a disadvantage as more bring B type claims (including discrimination) than type A claims. Whilst the fees may discourage litigants, there is no evidence that these are in respect of unmeritorious claims as the success rate has not changed drastically. The Supreme Court therefore found them to be unlawful.
In the immediate aftermath of the decision, this raises more questions than answers. Firstly, the Lord Chancellor’s department has confirmed that all fees paid through the regime to date will need to be refunded. This is not going to be a quick or easy task. It could be a manual task and what about where the respondent has had to pay the fees and partial remissions. Refunds to the claimant will not solve this as many insurers or firms have paid these on the claimant’s behalf and also respondent’s may have been ordered to pay them. This is three year’s of mess to unravel.
Next the ET rules will need to be re-written and immediate changes made to the online claims system to deal with the lack of fees. No doubt HMTS will be looking to bring the IT solutions through as swiftly as possible and stop taking fees immediately.
As a solicitor representing both claimants and respondents in their employment tribunal claims this will have some implications. Firstly, will my respondent clients see a rise in the number of claims? This is possible and almost inevitable given the drop off a cliff that we saw in terms of numbers when the fees regime was introduced. For claimants, this is not likely to immediately impact on my personal work load as if a client can pay a solicitor to advise – fees are less likely to be an issue. I do not conduct no win no fee work so I cannot expect any increase here but for those with insurance funding I envisage a lot of admin for me as insurers look to the insured to refund and if payment are made back to the card they were taken from this will impact on me. Indeed with one household name in insurance, we are expected to fund all these fees until the case concludes. So where we have paid them out this may be an issue that needs to be resolved.
With my judicial hat on as an Employment Tribunal Judge, this is a concern as what about all those claimants who felt unable to bring a claim before and will they now be permitted to do so notwithstanding the time limitation issue. Was it “reasonably practicable to bring a claim” before when an unlawful regime was in place? or in discrimination claims would it be just and equitable to extend time. If we are going to see a wave of such claims this could have a huge impact on timetabling. We know from publically available data that the ET fee regime did not balance the ET books and we were still in deficit. This is a huge repayment bill and our budget is already being squeezed. It is quite possible that we will see budget cuts and thus a direct impact on hearing times. There will also be a complex transition when deciding cases in the favour of claimants to try and work out who paid what fees before today will these still be reimbursed or will the claimant now have to await the MOJ huge exercise to work this all out and refund people.
It is going to be a case of watch this space. All employment solicitors dislike unmeritorious claims but the fact remains these still exist and it is a real risk that people with a justifiable claim have slipped through the net and have not seen justice so now we have to work out what to do next..