So, the Supreme Court has decided that the introduction of Tribunal fees under the 2013 order was unlawful. In places, the judgement occasionally leaps to definitive conclusions from evidence that does not wholly justify such conclusions: hypothetical examples are given to back up these up; I was always taught that hypothesis is hypothesis and is not to be confused with factual evidence.
However, in essence the judgement is sound; if only in that the Tribunal fees that were set at too high a level for those with limited or no resources, thereby preventing such individuals from having access to justice. The two different fee levels (depending upon whether claim was type A or type B claim) did not take into account the potential value of the claim; unlike the fee structure for making a claim in a County Court. The example given in the judgement was that for an employee to claim £500.00 in respect of an unlawful deduction from wages he or she would have to part with £390.00 in Tribunal fees: there was no ‘proportionality’.
Although the judgement is both just and fair it does create a problem. There is now nothing to dis-incentivise vexatious litigants or those with unmeritorious claims from making a claim: maybe on-line, 3 months to the day after dismissal and maybe, following a lengthy session in the pub! There will be no cost incurred by the person clicking the ‘submit’ button; but the employer will immediately face the very substantial costs involved in defending or perhaps settling the claim. This is where there is a reversal of the ‘generally characterised … imbalance of economic power’. Granted, the relatively small number of people who have been genuinely wronged by their employer and whose financial circumstances would have made them unable to bring a claim will now be able to do so: this is right. However, the main beneficiaries of this judgement will be, as always, the lawyers who can now look forward to their work load and, by consequence, their fees returning to the levels they were at before Tribunal fees were introduced.