ET & EAT fees unlawful
Thursday 27th July 2017
The Supreme Court in R (on the application of UNISON) v Lord Chancellor has held that ET and EAT fees prevent access to justice and are unlawful under both domestic and EU law. With immediate effect, fees are no longer payable and fees paid over the last 4 years are to be refunded.
Fees were introduced in July 2013, with the aim of transferring some of the costs of the ET system from taxpayers to claimants, encouraging alternative dispute resolution and reducing weak or vexatious claims. Whilst these aims were held by the SC to be legitimate, this did not mean that it was lawful to impose any fee the Lord Chancellor considered necessary.
The SC referred to evidence demonstrating the negative impact of fees and specifically to the review by the House of Commons Justice Committee, which highlighted the dramatic drop in claims and warned that access to justice was being denied.
The SC focused on the constitutional right of access to justice and also noted that fees did not correlate to the value of the claim or type of remedy sought. Under domestic and EU law, there must be an effective remedy to enforce statutory rights which protect workers and employees in what is generally an unequal economic relationship. Even if fees were affordable, they may still prevent access to justice where they render a low value claim futile or where an alternative remedy is sought.
The SC also held that fees were indirectly discriminatory, placing women at a particular disadvantage, with women more likely to bring a Type B claim (with its higher fees) than a Type A claim.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.