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Employment Tribunal fees survive Unison challenge

The Court of Appeal has firmly dismissed Unison’s attempt to overturn the Employment Tribunal fees regime. Following the detailed and complex…

The Court of Appeal has firmly dismissed Unison’s attempt to overturn the Employment Tribunal fees regime. Following the detailed and complex Judgment in the case of R (on the application of Unison) v the Lord Chancellor it appears that the union’s attempt to end Tribunal fees through legal challenge has been unsuccessful.

The facts

When Employment Tribunal fees were first being introduced, Unison endeavoured to challenge their legality but this was rejected as being premature. That legal challenge was re-presented by Unison when the dramatic reduction in the number of Employment Tribunal claims, which had followed the introduction in fees, became evident. These challenges have all now been considered together by the Court of Appeal. In summary Unison’s arguments were that: the fee regime stopped European-based rights (such as discrimination) being effectively enforced; and the fees charged for complex claims, such as those for discrimination, indirectly discriminated against those with protected characteristics (such as women who are statistically more likely to purse a discrimination claim). The Court of Appeal has rejected all of the union’s arguments.

Some of the reasons for the decision are very complex. However Unison struggled with the fact that it is not those on the lowest incomes who are unable to bring Tribunal claims, because those claimants will not have to pay a fee due to the remission system. It is in practice those with higher incomes or assets who will not get remission and may be dissuaded from claiming by the fees. There was no evidence before the Court of any actual person who was unable to bring a claim, as opposed to broad evidence that some were unwilling to because of the costs of doing so. The discrimination claim was in the main not held to be made out at all, and the way in which the amount of fees to be paid is broadly-based upon the type of claim pursued and therefore the likely length of hearing, was held to be justified.

Whilst the Judgment does not strike down fees, it does contain a strong message for the Lord Chancellor’s current review of Employment Tribunal fees. The Court said “The fact that the evidence put before this Court has not satisfied me that there has been a breach of the effectiveness principle should not, and I am sure will not, preclude the Lord Chancellor from making his own assessment, on the basis of the evidence to which he will have access, on that question. The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited”.

What does this mean for me?

The current fee arrangements for Employment Tribunal claims have undoubtedly contributed to a significant reduction in Tribunal claims. The failure of this challenge means that fees are likely to be here to stay. As the Court of Appeal in its Judgment observes, if the impact of fees is to make potential claimants think twice about starting proceedings that is “not …a bad thing”. However our experience is that the fee regime enhances the benefits for you of following good procedures and practices, as the existence of appropriate and well-reasoned documents and procedures makes potential claimants less likely to pay money to pursue a claim (or be able to get their fees paid by their insurers or unions).

Comment

It is not inconceivable that this Judgment leaves open the possibility that further challenges to the legality of fees may be brought, based upon individual cases where actual claimants are unable to afford to claim. Appeal to the Supreme Court cannot be discounted. However the strong and clear Judgment of the Court of Appeal certainly suggests that Tribunal fees will not be overturn by the Unions through the Courts. Whether the Judgment influences the current governmental review and whether we see any changes to fees in the future as a result, we will just have to wait and see.

If you would like this Judgment in more detail or have any questions about it, please speak to your usual contact in the Weightmans employment, pensions and immigration team, or get in touch with Phil Allen phil.allen@weightmans.com