In one of the most significant decisions in the world of employment law for many years, the Supreme Court in R (on the application of UNISON) v Lord Chancellor has declared that the system of fees for bringing Employment Tribunal claims (and claims in the Employment Appeal Tribunal) which has been in place since July 2013 is unlawful under both domestic and EU law by virtue of the fact that is prevents access to justice.
In all fairness, the impact of the introduction of the fees regime has been undeniable (and one would imagine, far more impactful that was originally envisaged by government at the time of introduction), with a sustained drop of some 66–70% of claims. The point which has been made very clear in the Judgment is that unless reasonably capable of being enforced through the court system however, then the laws in place are essentially meaningless.
Conflicting views abound at present as to precisely what the knock on effects will be in the immediate and longer term, however there appears to be a relatively common consensus that with immediate effect, fees are no longer payable for claims before the Employment Tribunal or appeals to the EAT, and that all fees which were paid in the past, must be reimbursed. There are a whole host of practical issues which will need to be looked at very urgently (not least where things stand for individuals who haven't brought a claims because they couldn't afford to, and how exactly reimbursement of fees already paid will be managed - particularly where the Claimant lost at hearing), however solutions to those issues will no doubt start to emerge in the coming days and weeks.
In the meantime, from the perspective of society as a whole, this is a very welcome decision and underpins the fundamental public importance of access to justice. It many not however be as welcome news to employers who've benefited from that 66-70% drop in tribunals for the past several years...
Fees for those bringing employment tribunal claims have been ruled unlawful, and the government will now have to repay up to £32m to claimants.