A JOURNEY TO JUSTICE: HOW EMPLOYMENT TRIBUNAL FEES WERE SCRAPPED

In 2013, the UK government ruled that employment tribunals would no longer be free for claimants. In 2017, UNISON’s legal team worked with Professor Abi Adams-Prassl (Department of Economics) and Professor Jeremias Adams-Prassl (Faculty of Law) to mount a successful challenge to this regime. The Supreme Court declared the fees unlawful and unconstitutional, and claimants have since been refunded millions of pounds in fees.

Professors Adams-Prassl used detailed survey evidence alongside a simple economic choice model to demonstrate that most legitimate claimants could expect to end up with less money overall, once the fees had been deducted. This was deemed a barrier to justice and a violation of UK and EU law. 

Pursuing claims “irrational” when faced with fees

The academics noticed a sharp decline in employment tribunal cases following the introduction of claimant fees in 2013. They wanted to find out whether the economic challenges posed by the introduction of fees was preventing individuals from bringing legitimate claims to tribunal. 

As part of their study, Professor Abi Adams-Prassl developed an economic model of rational claimant behaviour. The model showed that a high percentage of meritorious claimants would expect a net negative pay-off following the introduction of claimant fees. So, for most people, pursuing an employment claim would be an irrational decision. Even if their claim was likely to succeed, they would end up with less money overall.

These conclusions would go on to play a key part in challenging the legality of employment tribunal fees. 

 

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A unanimous decision

There had been little success in appealing the decision previously. Trade union UNISON had applied for judicial review and lost three times – twice in the High Court and once in the Court of Appeal.

In 2015, UNISON was mounting their Supreme Court challenge to the fees when its legal team was presented with a draft version of the Adams-Prassl paper. The team drew on the research as part of their appeal, and both Professors Abi and Jeremias Adams-Prassl provided advice and feedback leading up to the case.
 
Theirs was the only academic paper cited as evidence in the Supreme Court in 2017. The research was used to demonstrate that an individual would need to behave irrationally to pursue a low-value meritorious claim, and that this was a barrier to justice.

The Court’s decision was unanimous in finding the system of tribunal fees illegal and the fees were scrapped immediately. This was a landmark constitutional case, showing the government’s regime to be in breach of constitutional law. All fees paid were to be reinstated  – a projected cost of more than £30million. The Adams-Prassl paper was said by the legal team to have had ‘significant influence’ on the outcome.

In the year following the ruling, tribunal claims more than doubled. 

Professor Abi Adams has since received the 2018 ESRC Celebrating Impact Prize for Outstanding Impact in Public Policy for her research on the incentive effects of employment tribunal fees.

 

References

Adams, A and J Prassl (2017) ‘Vexatious Claims? Challenging the Case for Employment Tribunal Fees’  Modern Law Review 412-442 and online appendix https://doi.org/10.1111/1468-2230.12264  (Winner of the Wedderburn Prize for the best paper published in Modern Law Review in 2017)

Adams, A. and Prassl, J. (forthcoming) ‘Access to Justice, Systemic Unfairness, and Futility: A Framework‘, Oxford Journal of Legal Studies.