• The High Court has dismissed UNISON’s application challenging the lawfulness of fees in the Employment Tribunal and Employment Appeal Tribunal.

    Background

    Up until July 2013 bringing a claim or appeal in the employment tribunal or employment appeal tribunal was free of charge. From 29 July 2013, a controversial new fees regime was implemented in accordance with Government proposals.

    Following the introduction of fees, UNISON, one of the UK’s largest trade unions, lodged an application for judicial review of the decision made by the Ministry of Justice to introduce fees in the Employment Tribunal and Employment Appeal Tribunal. A Judicial review is a type of court proceeding where a judge reviews the lawfulness of a decision of action made by a public body.

    Complaints

    UNISON raised a number of legal arguments including that the introduction of the fees was effectively a bar on access to justice for individuals who had been treated unfairly by their employers and that many such individuals would be unable to raise the necessary funds in time to meet the tribunal deadlines. The union also argued that the fee system would be likely to be indirectly discriminatory in its effect in relation to women, who raise the highest percentage of discrimination cases, particularly sex discrimination cases.

    Decision

    All challenges raised by the union were dismissed.

    Despite rejecting the application the Court made a number of interesting points in relation to the fees and their future as follows:

    • Reference was made to the fact that as the fees were only introduced in July last year, the court felt that a decision could not be made now, as the full impact could not yet be judged. The High Court expects the government to keep this issue under review. Should fees have the impact that UNISON suggest, the system would need to be amended;
    • The Tribunal rules currently do not guarantee that a successful claimant will recover fees they have paid if an award is made in their favour, though Tribunal Judges do have discretion to order this. It was noted in the Judgment that errors were made in the guidance on fees and the indication from the Lord Chancellor, given during the hearing, was that a successful claimant should expect to recover the fees they have incurred from the employer. As a result, the rules may be amended in due course.

    Comment

    This is unlikely to be the end of the matter as Unison has already indicated their intention to appeal this decision to the Court of Appeal. The door may also be published to future challenges, if not on the fees in principle, to the level of fees. We will keep you updated with developments.

    In the meantime, on the one hand, this is good news for employers, as the continuation of fees will hopefully maintain the reduction in claims being brought against employers. The introduction of fees was intended to reduce the number of spurious claims. Whilst there is no specific evidence of a reduction in spurious claims, latest figures confirm a reduction in the overall number of tribunal claims being issued since the introduction of the fee regime of about 80%, a dramatic fall.

    On the other hand, it has been made clear that there is a presumption that a successful claimant will recover fees, therefore whilst potentially arguable before; this will no longer be the case. This will, therefore, need to be factored into any settlement discussions.

    It is still important for employers to ensure that they treat employees fairly and deal with issues raised in accordance with the law as for many aggrieved employees the fees will not deter them from issuing a claim and they may even be able to take advantage of the remission scheme which exempts individuals meeting certain criteria from having to pay fees.

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