UK Supreme Court ruling on employment tribunal fees welcomed in Scotland
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Fees for employment tribunals are unlawful because they prevent access to justice, the UK Supreme Court has ruled today.
The seven justices of the UK’s highest court unanimously concluded that the UK Government had acted unlawfully and unconstitutionally under both UK and EU law in introducing the fees four years ago.
The fees were also deemed indirectly discriminatory, because of a higher proportion of women bring the more expensive cases relating to equal pay, discrimination or unfair dismissal.
The Government must now refund an estimated £27m in fees it has been paid for taking claims to tribunals.
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Introduced by the UK Government in July 2013, tribunal fees were designed to deter ‘vexatious’ claims and transfer the responsibility for paying the cost of the claim from the taxpayer to the claimant.
Since then workers who believe they have been treated unfairly or illegally have had to pay between £390 and £1,200 to take their employer to court.
This led the number of tribunal cases dropping by 79 per cent in three years.
The Supreme Court justice Lord Reed said the fall in the number of cases is “so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.”
The appeal case was brought to the Supreme Court by public services union UNISON after it had been defeated in the lower courts and the union hailed the decision as a “landmark court victory”.
UNISON general secretary Dave Prentis said: “The government is not above the law. But when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.
“The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.
“It’s a major victory for employees everywhere. UNISON took the case on behalf of anyone who’s ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand.
“These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.
“We’ll never know how many people missed out because they couldn’t afford the expense of fees. But at last this tax on justice has been lifted.”
The decision has been welcomed by other trade unions.
GMB general secretary Tim Roache said: "The Supreme Court decision on employment tribunal fees is a victory for common sense and the basic right of working people to access justice in our legal system.
“Rights are no rights at all if you can't afford to enforce them."
Scottish Trades Union Congress (STUC) general secretary Grahame Smith said: “This landmark victory will ensure that access to employment justice is returned to thousands of workers and that those who were forced to pay for cases will now be reimbursed.
“It is a disgrace that many, many other workers have been denied justice over the past four years because fees dissuaded them from taking cases.”
Commenting on the decision, Citizens Advice Scotland spokesperson Rob Gowans said: “We have consistently opposed employment tribunal fees, as evidence has shown that fees make it harder for people to claim, even when they have been treated unfairly at work.
“Since the introduction of fees, the decision to bring a claim to an employment tribunal has become a financial one, not based on the merit of a person’s claim.
“Fees have also negatively affected the power balance between workers and employers.
“This judgment should be implemented without delay, to refund people who have paid out to bring their case to tribunal since 2013, and to help protect workers from unfair treatment.”
The ruling has also been backed by the Law Society of Scotland.
Convener of the society’s access to justice committee Stuart Naismith said: “We wholeheartedly welcome this judgment.
“The effect of introducing fees has been drastic and resulted in an unfair system which prevents legitimate cases being heard by a tribunal.
“We believe the fees have been a major barrier to access to justice for thousands of people, with the huge drop in the number of cases being brought to an employment tribunal supporting this.”
He added: “The relationship between employer and claimant is often imbalanced and having a system which serves both parties effectively is crucial in the interests of fairness.
“We are also pleased to see the court articulate the wider constitutional principles around access to justice and the rule of law.”
Tribunals are currently a reserved matter, but they are due to be devolved to the Scottish Government under recommendations made by the Smith Commission, although a date for transfer of powers is yet to be set.
The Scottish Government committed in its programme for government in 2015 to abolish the fees for employment tribunals when it gains the power to do so.
Legal Affairs Minister Annabelle Ewing said: “We strongly opposed the UK Government’s introduction of employment tribunal fees and had committed to abolishing the fees in Scotland when the management and operation of employment tribunals are devolved.
“The Scottish Government is delighted the UK Supreme Court has ruled employment tribunal fees to be unlawful.
“We will continue to work with stakeholders, including trade unions, to ensure the new employment tribunal system in Scotland provides access to justice and contributes to our vision for fair work to be embedded in all workplaces in Scotland.
“We are continuing to discuss the transfer of reserved tribunals to Scotland with key stakeholders and the UK Government, including the proposed timetable for the devolution of responsibilities relating to the main jurisdictions.”
Unite Scotland called for MSPs and MPs to hold the UK Government to its promise to devolve the powers over employment tribunals.
Unite Scotland secretary Pat Rafferty said: “What this judicial decision does is highlight the fact we cannot rely nor trust a Conservative government to be on the side of working people.
"For this reason, we are repeating our calls, irrespective of any potential referendums, that employment law be devolved to Scotland as part of the post-Brexit settlement.
“This is essential if we are to create a fair and equal society. Unite urges all of Scotland’s elected representatives at Holyrood and Westminster to support this call.”
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