The recent Supreme Court decision that the much criticised court fees for bringing claims to the employment tribunal are unlawful is expected to lead to a large increase in claims and all claimants who had to pay a fee will have to be reimbursed says Ashley Harkus, managing partner of Everett Tomlin Lloyd & Pratt Solicitors, which is based in Newport and Pontypool.

The Supreme Court ruled that the fees were contrary to UK and EU law and also indirectly discriminatory to women as a higher percentage of women would bring discrimination cases which fell into the a higher fee bracket.

The fees were brought in by Chris Grayling, the then Lord Chancellor, in July 2013.

An issue fee plus a hearing fee was payable, the maximum payable being £1,200.

The government argued that the fees would dissuade claimants from bringing weak cases and would look to other methods to resolve their problems, such as mediation via ACAS while the Law Society, claimant lawyers and many others suggested they were simply a way of obstructing access to the tribunal for low paid workers and went too far.

During the past four years that the fees have been payable government statistics show that the levels of claims were down by 70 per cent. Trade unions have argued that the fees have acted as a barrier to justice.

The decision signifies the end of Unison's four-year legal battle to have the introduction of the fees reversed and is one in a long line of decisions overturning the policies of the first no- lawyer Lord Chancellor Chris Grayling.

In a statement following the decision, justice minister Dominic Raab said that the government will take 'immediate steps' to stop charging the fees and to begin the process for issuing refunds to those who have paid the fees in the past, dating back to 2013. It is thought that the government may have to repay up to £32m.

Views differ but it is thought that options going forward include strengthening the power of the tribunal to award costs against the losing party or possibly a new lower fee regime. It is clear, however, that following on from the decision the Employment Tribunals Service will need to immediately rewrite the tribunal rules, and amend the online claim form system that until now required claimant to make an online payment before being able to proceed. It is also thought that employment judges who have been moved to other types of judicial work may need to be reallocated back to the tribunal .

At a time when the civil courts are currently being run at a £100m profit by the government after a raft of fee increases, the argument over the level of fees needed to fund the courts versus access to justice for the public look likely to continue. In the meantime employers lawyers may need to look at their approach to resolving disputes as it will become easier to take claims to the tribunal.

Ashley Harkus is Managing Partner of Everett Tomlin Lloyd & Pratt Solicitors based in Newport and Pontypool

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