The outcome of Unison’s Judicial Review of Employment Tribunal Fees announced.
In July 2013 the government introduced fees in the Employment Tribunal for the first time. This means that anyone who wants to pursue a claim in the Employment Tribunal must pay a fee of either £160 or £250, depending on the type of claim, to start the claim, and either £230 or £950 for the final hearing.
As a result of the fees Unison applied for a judicial review to challenge the fees. Last week the High Court issued their Judgment in response to the challenge.
Unison’s challenge to the fees regime was on the following basis:
1) That it was a breach of the principle of effectiveness, on the basis that the fees would make it difficult or impossible to exercise rights under EU law.
2) That the fees are a breach of the principle of equivalence. Looking at equivalent claims in the County Court the fees were less favorable.
3) Breach of Public Sector Equality Duty. Namely that the introduction of fees is a breach of the Lord Chancellor’s duty to eliminate discrimination and advance equality.
4) Indirect Discrimination against minority groups as a result of higher fees for discrimination claims.
In summary the High Court rejected Unison’s application as they were not convinced by the evidence and arguments presented. The Court preferred the view to let time tell whether any problems, such as those argued by Unison, would arise and be dealt with by government. Ultimately it appears that Unison’s application was made too early and there was insufficient evidence of the effects that Unison were alleging as a result of the fee regime.
In response to the arguments raised by Unison the Court considered the following:
1) There is no evidence that the principle of effectiveness would be violated by the introduction of the fees regime. The Court considered that the fees were not excessively high and individuals are still able to exercise their rights under EU law.
2) The High Court did not agree that in comparison to claims in the County Court that there was any less favorable treatment to the fees regime in the Employment Tribunal.
The current difference between the Employment Tribunal and County Court is the principle that the loser usually pays the winners costs in the County Court and traditionally the principle has been (in most cases) that each party pays their own costs in the Employment Tribunal.
The High Court considered this difference and noted that guidance is to be released stating that if successful (in most cases) an employee should be able to recover their fees from the losing Employer.
3) The High Court also rejected the argument that the Lord Chancellor would be in breach of his duty to promote equality by the introduction of fees.
4) The High Court was unable to identify a disadvantage to minority groups and those with ‘protected characteristics’ under the Equality Act by the different fee levels. The Court did however state that there may be some disparate effect on minority groups but unfortunately due to the timing of the application it could not be established at this time.
Unison have indicated that they intend to appeal against the decision and given some of the comments made by the High Court it appears likely that once further evidence of the effect of the fees regime is known, there will be additional considerations and possibly conclusions to be made.
For the time being the fees regime in the Employment Tribunal remains in place, but it is certainly not the last we have heard about it.