Blimey.

I now wish that, when I wrote yesterday’s post on the imminent  Supreme Court ET fees decision, I had sounded rather more confident. Frankly, though, I found it difficult to believe that the Court would really be so bold as to strike down a flagship Government policy – but it has. Employment Tribunal Fees have been abolished.

Whatever side of the employment law fence you sit on, we should first of all acknowledge that this is an astounding victory for the legal team at UNISON.

They began their legal challenge in June 2013 and have lost twice in the High Court and once in the Court of Appeal. I , like many other employment lawyers, thought that they stood only a theoretical chance of winning. It was only when I saw the arguments in the Supreme Court that I thought ‘oh hang on, they might just do this’. Taking the case all the way took dogged determination, and amazing confidence in the face of some pretty negative judicial comment  – but in the end they won through. Moments of utter triumph are rare in professional life and everyone involved deserves to revel in this one.

I won’t try to analyse the reasoning of the case. Look at the timeline of Jermias Prassl –  for a proper legal assessment.  But I do want to make a few points and pose some questions.

First point. Although the Supreme Court mentions EU law and human rights in its judgment, it is important to stress that the outcome is based firmly on British constitutional law. Lord Reed – and its almost as though he wanted to really emphasise this point – referred to MagnaCarta, Sir Edward Coke’s Institutes of the Lawes of England and Blackstone’s Commentaries on the Laws of England as well as case law dating back to the early 20th century.

This is not a case where the policy of the UK Government has been overruled by the EU or the European Court of Human Rights. The Government has simply acted in a way which went beyond the powers granted to it by Parliament. Let’s have no Brexiteer whinging about this.

Second point. The Government might have expected that if it did lose then it would do so on the basis that the system should be reformed because it was now clear that ET fees are having a bigger impact on claims than was intended.  Perhaps they expected that the Supreme Court would suggest a lowering of the fees payable and give the Government a chance to come up with a new system.

Well – no. The Supreme Court’s decision is that the Fees Order was unlawful when it was made and they have quashed it. That means that the Government is not being ordered to abolish the fees – the fees have been abolished! There is no longer any need for claimants to pay a fee to the Tribunal and the Employment Tribunal Service will need to get its act together pretty quickly and change its internal systems to reflect that fact. To its credit is seems that the wheels are already in motion with reports of claimants being told that they are no longer required to stump up a hearing fee

Third Point. In theory, the Government could come up with another system. They could introduce primary legislation spelling out precisely what level of fees could be charged or another Fees Order that complied with the Supreme Court’s requirements on access to justice.

But that’s not going to happen is it? Primary legislation is out of the question. The Government hasn’t got the time – or the majority – to get it done. A new Fees Order would just threaten a new Judicial Review unless there was very careful consideration of a whole range of different potential claims, a very low fee for small claims and a much more generous remission system. Even then the Government couldn’t be certain the new system would withstand scrutiny. They can’t possibly think that it is worth the effort and  – with everything else on their plate – will surely just decide to just move on. Perhaps this is an issue they can revisit after the Brexit dust has settled, but I can’t see fees rearing their ugly head again for a year or two.

So now some questions:

• Since  every single ET fee levied since 2013 has been collected illegally. The Government will need to give the money back. How will that be done? Will people need to apply or will the Government process refunds automatically?
• What about the employers ordered to pay costs to winning claimants to reimburse them for the fees they were unlawfully required to pay? Will the employer be refunded by the Government? Or will employers have to ask for refunds from claimants once those claimants have been given their refunds?
• What about claimants who paid the fee but then settled their claims? If they get a refund will the employers who settled be able to recover for that part of the settlement representing the fee? Will they recover it from the claimant or the Government?
• Will potential claimants who were unlawfully denied access to justice be able to sue the government for the losses caused by their inability to bering a claim? Will they perhaps be allowed to submit late applications to the Tribunal?  How will Tribunals treat those late applications?

Answers to these questions will emerge in the coming weeks and months. In the meantime, the biggest question of all is what will happen to the number of Tribunal claims now that ET fees have been abolished? Will they just bounce back to their 2013 levels? If they do, will the Tribunal system be able to cope? Does Acas have enough conciliators available? Will Richard Dunstan do a graph?*

There are all sorts of issues that will need to be addressed over the coming months. For now, though, UNISON are entitled to sit back and enjoy the biggest single victory in the history of employment law.

*Rhetorical question. Of course he’ll do a graph.