Employment Tribunal Fees – The saga continues

Friday 19 December 2014

In February 2014 I blogged about how UNISON had failed to persuade the High Court to quash the Employment Tribunal fee regime that was introduced in July 2013.

One of the main reasons for the failure of the original challenge, was that that the Court felt the application for judicial review had been made too early – there was not enough evidence to determine whether groups of workers had been placed at a disadvantage by the fees. Since then there have been more statistics published which show that during the period October to December 2013 there were 79% fewer claims to the Employment Tribunal when compared with the same period the year before.  In the period January to March 2014, statistics show that there were 81% fewer claims accepted than the previous year.

Whilst there is some debate over how accurate these figures are when you take into account that some of these claims are multiple claims, there is no dispute that there has been a substantial drop in Employment Tribunal claims since fees were introduced in 2013.

UNISON’s second challenge was again based on the premise that the fee regime denies access to justice for employees and that the affect of the fees has a disproportionate impact on women.

UNISON was hopeful that with the statistics showing a dramatic drop in Tribunal receipts, the Court would support their challenge this time around.

Unfortunately for UNISON the High Court did not accept these arguments and found that the fees were proportionate. The Court also found that charging a higher fee to bring a sex discrimination claim was not indirectly discriminatory because these claims require more of the Employment Tribunal’s time and resources. Fees could therefore be justified on the basis that the people who use the Tribunal system should contribute to its operation.

Ultimately the Court highlighted that apart from the Tribunal statistics, UNISON was not able to provide specific examples of individuals who had been unable to bring a claim because of the cost.

On that basis the Court could not say there was any infringement of EU law because there was no actual evidence from individual claimants.

Unsurprisingly, UNISON immediately announced its decision to appeal the decision of the High Court to the Court of Appeal.  UNISON General Secretary David Prentis said “The High Court decision is disappointing but we will fight on and do everything possible to ensure these punitive fees introduced by the Government are abolished”.

So it seems that unless the Government takes matters into its own hands and either abolishes fees or changes the payment structure, this issue will continue to be battled out via the courts for some time to come. Given the comments of the High Court we can probably expect to see UNISON’S appeal refer to actual examples of individuals who have been priced out of the Tribunal system rather than official statistics.