Are tribunal fees unlawful? | Hudson McKenzie

Are tribunal fees unlawful?

September 28, 2017 | Employment, Latest Thinking, News

Following from the recent judgement of the Supreme Court in July 2017 regarding the abolition of employment tribunal fees, the question arises as to whether this abolition could create a ‘domino’ effect upon all tribunal fees, thus leading to tribunal fees being determined as unlawful outright.

In R (on the application of UNISON) (appellant) v. Lord Chancellor (respondent) UKSC51 (2017), the Supreme Court ruled that employment tribunal fees are unlawful, due to its effect upon the access to justice. This is because following from the ‘Fees order’ in 2013, it has been argued that this order is not a lawful exercise of the Lord Chancellor’s powers of statutory law. This is predominately because those applying for employment tribunals are typically of a low income and therefore may not have access to apply for a claim at all, impacting their access to justice.

However, in 2011, the Ministry of Justice issued a paper stating that the central purpose of the ‘fees order’ was to initially release the financial cost from the taxpayer, as it was argued that only a small minority of taxpayers would use the employment tribunal services, making it unfair for all taxpayers to finance it.

Yet, it could be alternatively argued that by requiring claimants to pay for tribunal fees, this could also impact not only the access to justice but also the democratic nature of the legal system.

Thus, what would happen if all tribunal fees were abolished, following from the ruling that tribunal fees impact the access to justice and the democratic principle inherit in the justice system? Would the justice system become like the NHS? Is it lawful for money to dictate the application of justice?

One down fall of the abolition of tribunal fees could be that, like the NHS, longer delays in hearing tribunals occur, in which could also result in less tribunals coming forth. However, alternatively this could mean that tribunals of more substance are considered, in which are dependent upon the claim itself, rather than the fees associated with it, increasing the principle of justice all round.

If you would like to read more about the recent Supreme Court ruling regarding the abolishing of employment tribunal fees, please click the following link:

Furthermore, if you would also like to discuss employment law further, you can contact one of our specialised employment law solicitors on (020) 3318 5799 or by email:

Author: Portia Vincent-Kirby