This briefing discusses some of the consequences, for employment tribunals, of the Supreme Court's decision in R (Unison) v Lord ChancellorJump to full report >>
Employment tribunal fees were introduced during July 2013 by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893). Prior to that, since the creation of the employment tribunal system, claimants were not required to pay fees to bring their claims. Since their introduction, tribunal fees were the subject of repeated judicial review proceedings both in England and Wales, and in Scotland. Until the matter reached the Supreme Court, those challenges failed.
On 26 July 2017 the Supreme Court handed down judgment in R (Unison) v Lord Chancellor  UKSC 51, quashing the Fees Order and declaring it to be an unlawful interference with the common law right of access to justice. Employment tribunal and Employment Appeal Tribunal claims no longer attract fees. The effect of the declaration was that fees were identified as being unlawful from the start, meaning the Government deducted them unlawfully. On 15 November 2017 the Government announced the employment tribunal refund scheme via which those who paid fees would be reimbursed.
The introduction of fees had coincided with a steep decline in the number of cases received by employment tribunals. An average of 4,700 cases were received each quarter between October 2013 and June 2017, compared to 14,900 per quarter in the year to June 2013 prior to the fees regime (a 68% decrease). After the Supreme Court ruled fees to be unlawful, the number of cases rebounded again. Just under 9,800 cases were received in January-March 2018, more than double the number in the same quarter in 2017 but still well below pre-2013 levels.
Reports indicate that the increase in employment tribunal caseload following the Supreme Court ruling, combined with a shortage of judges, is leading to delays in cases being brought to hearing. The number of employment tribunal judges declined by 16% between 2012 and 2017. The Government has confirmed that processes are in place to recruit more judges, but this is likely to be a longer-term solution owing to the time interval between recruitment being approved and judges being able to hear cases. In the short-term, some additional resource is being provided through greater use of fee-paid judges (who are only paid for the days they work, as opposed to judges who receive an annual salary).
Commons Briefing papers CBP-8296
Authors: Douglas Pyper; Feargal McGuinness