On 7 February 2014 Unison, the UK’s largest union failed to persuade the High Court to quash the new employment tribunal fee regime.
In their judgment, Lord Justice Moses and Mr Justice Irwin said that the “fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime”.
Under changes made in July 2013, workers in the UK are now charged a fee to bring a claim, a fee if the claim is heard, and a further charge if they want to appeal against a decision.
Unison’s challenge to the fee regime was mainly based on the premise that the imposition of fees is contrary to EU law as they limit access to justice. The argument was also advanced that fees are indirectly discriminatory as they have a disproportionate adverse effect on women.
How much are the fees?
Depending on the type of case, it costs £160 or £250 to lodge a claim in the employment tribunal, with a further charge of either £230 or £950 if it goes ahead to a hearing. Discrimination and unfair dismissal cases fall into the higher category of fees. In the employment appeal tribunal, the fees are £400 to lodge an appeal and £1,200 for a full hearing.
What is the Government hoping to achieve?
The Government says the aim of introducing fees “is to transfer some of the approximate £74 million cost of running the employment tribunals and the Employment Appeal Tribunal from the taxpayer to those who use the system.”
Justice Minister Shailesh Vara said: “It is not fair on the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal. We want people, where they can afford to do so, to make a contribution,’ also adding; ‘Fee waivers are available to people who cannot afford to pay”.
However, David Prentis, Unison’s General Secretary, argues “Experience shows that the balance in the workplace favours the employers and pricing workers out of court is unfair and underhand.”
The Court’s view
Whilst the Court did not find that making a claimant pay a fee to bring their claim was unlawful, it was unable to decide if imposing a higher fee for more complex claims could be objectively justified.
The Court found that the application for judicial review had been made too early. As the fee regime has only been in place since July 2013, there was not enough evidence available to determine whether any groups of workers had been placed at a disadvantage.
The Court did say that it expected the Lord Chancellor to keep the issue of fees under review and, once the appropriate evidence can be collated and assessed, he is under a duty to take remedial action if required.
What happens next?
Whilst this is good news for employers, Unison has stated their intention to appeal the decision to the Court of Appeal. David Prentis said “The bottom line is that the Government should not put a price on justice. We strongly believe that these fees are unfair and should be dropped, which is what we will argue in the Court of Appeal.”
‘’We provided clear evidence that since the fees were introduced, the number of employment tribunal cases has collapsed. It is doubly disappointing therefore that it was decided that our case had been taken too early.”
So it seems that the Government may have won the opening battle but this is by no means the end of the war. Irrespective of the success or failure of Unison’s appeal, the High Court has made it clear that the Lord Chancellor has a duty to keep this situation under review and act accordingly once more is known about the actual impact of the fee regime.
Expect this issue to be revisited over the coming year as more evidence of the actual impact of fees comes to light. However, for the time being at least, it seems that employment tribunal fees are here to stay.
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