UK: UK Employers At Risk After Tribunal Fees Quashed

Last Updated: 16 August 2017
Article by Jimmy Nicholls

A Supreme Court judgment increases the pressure on businesses and the legal system.

A British court ruling against employment tribunal fees has raised fears that businesses, mediators and the courts could face a greater burden of cases irrespective of their employment practices.

The Supreme Court decided in July that the fee scheme introduced in 2013 by the government 'prevents access to justice, and is therefore unlawful' and is also 'indirectly discriminatory' against women.

Although the decision has been widely welcomed as in the public interest, observers warn that by making it easier for employees to bring claims more pressure will be put on businesses and the legal system.

'The overarching point is this is a bad outcome for business because it means there is one less hurdle standing in the way of employees bringing claims,' Joe Aiston, a senior associate specialising in employment at law firm Taylor Wessing, told Governance and Compliance.

'Obviously you would expect business to have their employee procedures in good shape, but it is more important than ever now.'

Peter Swabey, policy and research director at ICSA, said: 'This is undoubtedly a good decision from the viewpoint of workers' rights, but it is important to balance access to justice against the cost to business of defending against frivolous claims.'

"It is important to balance access to justice against the cost to business of defending against frivolous claims"

The fees were put in place with the aim of placing more costs on users of tribunals, incentivising earlier settlements, and discouraging weak claims.

These fees applied for presenting a claim and as part of the hearing process, ranging from £360 to £1,200 for individuals, and between £780 and £7,200 for groups. A further £1,600 was charged for appeals.

Government counsel was 'unable to explain' how the fees had been set, according to the Supreme Court judgment, which argued that since there was no relationship between the size of monetary awards sought and fees the system was likely to deter small and non-financial claims.

Ministry of Justice data cited by the court show that claims accepted by employment tribunals for consideration fell by between 66% and 70% after fees were introduced, though some of this decline was attributed to an improved economy.

Though an exemption from fees existed for exceptionally poor claimants, this was described by the Supreme Court as 'of very restricted scope'.

Samantha Murray-Hinde, employment partner at law firm Howard Kennedy, said: 'It is inevitable that the number of claims will go up as there is now no financial disincentive to bringing a claim and an employee has little to lose.

'Even where a claim is unmeritorious, obtaining costs in the tribunal is seen as the exception rather than the rule and so an employer has limited recourse.'

Boosted caseload

Murray-Hinde added that employees who were previously deterred from bringing claims due to the fees might now argue that it had not practical for them to do so within legal time limits and that a time extension would be warranted for their claim.

'Disputes that the employer thought had been concluded could be resurrected as a result,' she said. 'This does not necessarily mean that rulings against employers will increase, however.'

Aiston disagreed on this point. 'It is obviously the case that there will be more successful claims,' he said.

'But also there will be more claims that are nuisance claims which have perhaps little value or merit and yet result in significant cost to employers.'

Analysis from the Ministry of Justice released in January had previously shown that the proportion of successful cases being brought before the tribunal is lower than before fees were introduced.

"It is obviously the case that there will be more successful claims"

Mitigating tribunal risk

While Murray-Hinde of Howard Kennedy advises companies to evaluate their employment policies in light of the decision, others believe that the impact to well-managed firms might be muted.

'I do not think employers have to do anything different provided they are complying with their procedures and policies,' said Paul McFarlane, a partner specialising in employment at Weightmans.

'The ruling is not going to impact adversely on an employer that complies with procedures and policies, because if they get a claim they can defend it.'

Rachel Suff, employment relations adviser at the Chartered Institute of Personnel and Development (CIPD), a professional association, said that good management policies could also reduce the risk of conflict going before a tribunal.

'The ideal approach advocated by the CIPD – regardless of fees – is to promote the use of informal conflict resolution methods like mediation, to help nip potential conflict in the bud,' she said.

'If a case does proceed to tribunal, relationships are likely to have broken down beyond repair so it is essential that organisations have in place good people management policies and practices, and nurture healthy  working relationships.'

Acas and court impact

Observers are also concerned about the ruling's effect on the court system and the conciliation service Acas, which provides mandatory mediation before a claim is presented to the employment tribunals, and can also be involved later in the process.

Taylor Wessing's Aiston said: 'The conciliation process was only brought in a couple of years ago and they're already struggling to deal with the number of conciliations effectively.

'The fact there are no fees will mean an increase in the number of people speaking to Acas. It may result in a reduction in the quality of service Acas can give.'

Responding to questions of mounting pressure, an Acas spokesperson told Governance and Compliance: 'We note the decision of the Supreme Court and will assess any impact on our conciliation services. Court system reforms and tribunal fees are the responsibility of the Ministry of Justice.'

Tim Goodwin, employment associate at Winckworth Sherwood, also said he doubted that Acas would become much more burdened as a result of the ruling, despite warning that the body 'is already badly overstretched and underfunded'.

'The Acas Early Conciliation process takes place before any fee was payable, so was effectively free – so it seems unlikely that would-be claimants were deterred from participating in that part of the process,' he said.

"The conciliation process was only brought in a few years ago and they're already struggling to deal with the number of conciliations effectively"

Following the decision, the UK government agreed to refund those who had already paid fees when using the employment tribunals, a cost of £32 million.

Dominic Raab, the justice minister, said in a statement that the government wanted to find a balancing between access to justice, deterring spurious claims and funding tribunals.

Aiston described the costs to the court system as 'massive'.

'We do not know how the taxpayer is going to pay for all that,' he said. 'They are going to have to do something to help Acas deal with the claims. The decision is a negative one from a taxpayer perspective.'

Unions could also be facing changes to their costs in fighting these cases, with some having paid the employment tribunal fees on behalf of their members, and used this perk as a recruiting tool.

'If there are more claims then that might have an impact on unions' resources in terms of how they defend those claims,' said Weightmans' McFarlane.

He added that the news was good for Unison, the trade union that pursued the claim against the government, but that the impact on other unions was unclear.

However, Murray-Hinde said: 'I consider this will serve to enhance the union's role in the workplace. 

'Good industrial relations have always been vital for any business, but with tribunals now more accessible, employers would be well-advised to work more closely with unions when dealing with contentious issues.'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.