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#ETfees: our insight on today’s Supreme Court ruling that employment tribunal fees are unlawful


#ETfees: our insight on today's Supreme Court ruling that employment tribunal fees are unlawful

26 Jul 2017

Head of Employment for Kuits, Kevin McKenna, gives his insight into today’s Supreme Court decision that employment tribunal fees are unlawful.

 “The Unison case decided today in the Supreme Court is likely to dramatically change the landscape for employment tribunal claims and substantially increase the risk of tribunal claims for employers.

“The introduction of fees in 2013 had the immediate effect of reducing claims significantly – data published by the Ministry of Justice puts this figure at 79%. It is beyond question that the new fees presented a significant barrier to entry for employees to air their grievances through the tribunal process, thereby limiting access to justice.

“This decision was always likely to occur because of the statistical support for the argument that huge swathes of potential claimants have been denied access to justice. The time lapse between the introduction of fees and the ruling today is partly the result of the Court of Appeal’s belief that sufficient time had not elapsed to fully understand the impact of fee introduction.

“We naturally expect a bounce in claims as a result of this decision. However, one point that has not yet been considered is whether employees who chose not to bring claims on account of their inability to fund the process are going to be able to bring a claim ‘out of time’. For example, we have seen cases struck out because the claimant has not been able to pay the fee required at the time of the initial hearing.

“The normal time limit for making a discrimination claim at tribunal is three months from the date when the discrimination is alleged to have happened – I believe we may see this waived on the basis of the new ruling to ensure access to justice for those who were unable to bring a claim due to their inability to pay while the fee structure was in place.

“In addition, I believe the decision made today is likely to propel access to justice further into the spotlight – as a result, the question remains open as to whether any of the arguments involved in this case could be used to attack similar fee structures in other areas of the court process that are perceived to be acting as a deterrent to proper legal course, and I expect that other significant decisions may come to light in the near future.”

For more information or to arrange an interview with Kevin McKenna, please contact us or call Sarah Evans on 0161 838 7815.

For a full explanation of the ruling, please see our legal update.

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