Employment tribunals after R (Unison) v Lord Chancellor

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 [2017] 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, receipts of cases rebounded again. The number of cases received each quarter has more than doubled since the ruling, but is still 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. A recruitment process for new judges is currently ongoing, but this is a longer-term solution as the new judges will not take up their posts until April 2019 at the earliest. 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).