Requiring women to pay a fee for taking a discrimination case to an employment tribunal breaches the Equality Act, the Supreme Court has ruled.
This was one reason the Supreme Court upheld an appeal by the union, Unison, against government policy that charged workers fees to lodge a claim at an employment tribunal.
The result of the case is that government has immediately dropped its charges but will further consider the issue at a later date.
Supreme Court judges in July 2017 heard that women were indirectly discriminated against because they were more likely than others to take a particular type of case that incurred higher fees.
The Court said:
“The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage because a higher proportion of women bring type B than bring type A claims.”
Pricing workers out of justice
The Court also ruled the government’s fees breached UK and EU law because they priced workers out of obtaining justice.
As the Supreme Court said:
“Fees must be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by forgoing an acceptable standard of living, the fees cannot be regarded as affordable.”
The Supreme Court also stated that all fees paid from 2013 will have to be refunded by the Lord Chancellor’s Department and the government has agreed to do this.
From 2013, the government introduced fees from £400 to £1,200 for people lodging legal claims in order to have their cases heard at an employment tribunal. There were other fees of up to £600 that might have to be paid depending on the case. To appeal an Employment Tribunal decision cost £1,600.
The Court heard that the number of claims fell by just under 70% because of the fees. Judges were also told that 86,130 cases were brought to a tribunal in 2015/16, and £11.6m was paid in tribunal fees in 2016/17.
The Supreme Court ruling reverses the outcome of the High Court case in August 2015 that Unison lost. The High Court concluded that the early conciliation process and fees could be responsible for the decrease in the number of cases.