Ensuring access to justice through Employment Tribunals and Employment Appeal Tribunals

Are the regulations imposing a structure of fees payable by claimants in Employment Tribunals (ET) and  Employment Appeal Tribunal (EAT) lawful?

In order to bring a claim in an Employment Tribunal, people had to pay fees. The amount of these fees varied: one sum for Type A claims; a larger sum for more complex Type B claims.

It is our role to help make sure people can access redress when they are wronged and have a fair trial in the criminal justice system.

We intervened using our powers under s30 Equality Act 2006.

In perhaps the most important judgment in employment law of the last fifty years, the Supreme Court found that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (Fees Order) prevents access to justice and is unlawful. The Fees Order was indirectly discriminatory under the Equality Act 2010 because the higher fees for “type B” claims (which include discrimination claims) put women at a particular disadvantage. This is because a higher proportion of women bring type B than bring type A claims (which are specified, and generally require little or no pre-hearing work and very short hearings). The charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order.

The immediate consequence was that the Fees Order is quashed, so that fees cease to be payable for claims in the employment tribunal (ET) and appeals to the EAT, and fees paid in the past must be reimbursed. The judgment is also of much wider constitutional significance, underlining the high degree of protection given to access to justice by the common law because of its centrality to the rule of law.