As discussed in our previous e-ploy in June 2013, from 29 July 2013 anybody bringing a claim in the Employment Tribunal or making an appeal to the Employment Appeal Tribunal (EAT) has been required to pay a fee. Fees start at £160 to issue a claim and rise to £250 depending on the type of claim. If the claim proceeds to a hearing then a hearing fee is payable. Hearing fees range between £230 and £950.
These fees were imposed by the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (the 2013 Order). Following the imposition of the 2013 Order, statistics have shown that tribunal claims have fallen by 80%.
Last year, UNISON (Britain's biggest trade union) made an application to the High Court for a judicial review to challenge the fees regime introduced by the 2013 Order and on Friday 7 February 2014 the High Court handed down its judgment which rejected UNISON's application.
UNISON made four challenges to the legality of the 2013 Order, all of which were rejected by Lord Justice Moses and Mr Justice Irwin:
(1) The requirement to pay fees as a condition of access to the Employment Tribunal and Employment Appeal Tribunal violates the principle of effectiveness since it will make it virtually impossible, or excessively difficult, to exercise rights conferred by EU law;
This argument was rejected on the basis that, as yet, there is insufficient evidence that the 2013 Order breaches the principle of effectiveness. UNISON was only able to put forward hypothetical examples of claimants. However it was noted that the dramatic fall in claims may turn out to be evidence in support of such a breach. The Court said that in light of the difficulties in proving discrimination claims, a "full exchange of information" before the hearing fee is paid should be encouraged by tribunals. The Court said that proceedings are expensive, but they are not virtually impossible or excessively difficult.
(2) The requirement violates the principle of equivalence since the requirement to pay fees or fees at the levels prescribed means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions;
It is expected that successful claimants will recover any tribunal fees paid. This argument was therefore unsuccessful because the position remains the same for claimants in Employment Tribunal claims and County Court claims.
(3) That in reaching the decision to introduce the new fees regime and in making the 2013 Order the defendant (the Lord Chancellor) acted in breach of the Public Sector Equality Duty, and
The Court was not persuaded that the public sector equality duty had been breached. There had been prior consultation on the imposition of tribunal fees and a fee remission system was in place. The Court noted that the public sector equality duty is an ongoing duty and therefore the Lord Chancellor had to monitor the introduction of fees and make adjustments, if necessary, to ensure equality of opportunity and the eradication of discrimination.
(4) That the effect of the 2013 Order is indirectly discriminatory and unlawful.
The basis for this argument was that Type B claims (equal pay claims) are more expensive than Type A claims and therefore women would be largely affected by this disparity. The Court said it could not rule on the disparate effect due to the lack of evidence to date but it did accept the general proposition that women earn less than men. It went on to consider whether there was an objective justification of higher Type B fees. The Court could not conclude on this point as it was premature to gauge the extent of any disparate impact.
The Court criticised the application for judicial review as "premature and that the evidence at this stage lacks that robustness necessary to overturn the regime". This leaves open the possibility of further challenges to the fee system.
UNISON has announced its intention to appeal this decision to the Court of Appeal.
The full judgment can be found here.
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