In our September 2013 edition of HR Headlines we reported that UNISON had applied for judicial review of the Lord Chancellor's decision to introduce Employment Tribunal and Employment Appeal Tribunal fees. UNISON's application has now been heard by the High Court which rejected the application in February 2014. The High Court determined the issue as follows:

  1. The fee remission programme which aims to assist low income Claimants with either writing off all or part of the fees is sufficient not to render the fees capable of making it virtually impossible or excessively difficult to access the Tribunal system.
  2. In comparison to other proceedings (for example, fast track proceedings in the County Court), the fees are at a similar level and therefore did not breach the principle of equivalence when compared with equivalent fees.
  3. The Lord Chancellor's decision to impose fees did not lead him to breach his public sector equality duty (i.e. a duty on him to ensure that in exercising his functions he had due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between those persons who share protected characteristics and those who do not). Although the Lord Chancellor might have dismissed such concerns (as not applying or being relevant), that did not mean he had failed to consider such impact on groups with protected characteristics.
  4. It is too early to say whether the imposition of fees has a disparate effect on minority groups so as to constitute indirect discrimination.

Whilst UNISON's challenge has initially been heard and rejected by the High Court, it may not be the last we have heard about fees. The High Court was clear that it is too soon for it to rule out indirect discrimination; therefore, we may see another challenge against the introduction of fees in the future. The Government also confirmed on 13 February 2014 that HM Courts and Tribunals Service is working to develop tools to monitor and analyse fees data which will give a greater view on how the fees are working and the fee remission system.

In addition, a noteworthy observation from this case is the Lord Chancellor's concession during the proceedings where he stated that a successful Claimant should expect to recover the fees he or she has paid from the Respondent. The Ministry of Justice has now updated its website and advice notes to state this specifically.

UNISON v The Lord Chancellor [2014] EWHC 218

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