David Greenhalgh, Head of Employment at leading London law firm Joelson, has said that businesses need to re-assess their approach to the risk of tribunal claims following the Supreme Court’s ruling that tribunal fees are unlawful.

David Greenhalgh

In a landmark ruling, The Supreme Court in R (on the application of UNISON) v Lord Chancellor has declared employment tribunal fees and employment appeal tribunal fees unlawful under domestic and EU law.

Under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, a new fees regime was introduced under which appellants were required to pay fees of up to £1,200 in order to bring a tribunal claim.

UNISON had claimed that these fees meant that potential applicants were denied access to justice and its appeal has now been upheld by the Supreme Court.

The Ministry of Justice has since announced that it will refund up to £32 million to claimants who paid fees to tribunals since the imposition of the fee regime in 2013 and put an immediate stop to future charges.

Reflecting on the Court’s decision, David Greenhalgh said: “This decision means that we are likely to see more tribunal claims and therefore employers will immediately face an increased level of risk.

“We may also see claims against the employers being brought out of time, with the tribunals being asked to extend time due to unlawful charges.”

David believes that the writing had been on the wall for tribunal fees since they were first introduced. There has been a lot of publicity regarding the massive reduction in the number of claims, something which was highlighted in the recent Taylor Report, which recommended reducing but not removing fees.

“In the last few years, the number of claims being brought has reduced significantly and I fear that, as a result there may be a number of employers who have become much less concerned about the risks of a tribunal claim and who have taken a much more relaxed approach to this risk – this needs to change and businesses need to revisit any possible areas of risk exposure,” added David.

He also warned employers of potential challenges from former employees on the horizon, saying: “While the limitation on employment matters is typically three months, we may see employees asking the tribunal to extend limitation due to the unlawful charges, but only time will tell on this.”

He added: “Whilst most employers are good at meeting their legal responsibilities, employers who have taken a more relaxed approach on the basis that tribunal claims were unlikely may want to plug any areas of risk or weakness swiftly and employers should be looking to invest more in their compliance with employment legislation.”