Today the High Court in England rejected Unison's challenge to the Government's scheme of employment tribunal fees introduced on 29 July 2013. The fees will cost employees wishing to complain about unfair dismissal as much as £250 to issue the claim and a further £950 to proceed to a full hearing. Successful employees may be reimbursed by their employers (but this will not happen automatically and will be at the tribunal's discretion). Although there is a means tested remission system, Unison's position is that this does not adequately mitigate the impact of the new fees.
The judicial review was based on a number of arguments. It was claimed the fees make it excessively difficult for individuals to enforce their European rights, such as rights against discrimination. It was also claimed that the employment tribunal fees were out of sync with fees payable in other first tier tribunals at a similar level in the judicial hierarchy. Unison further challenged the fees on the basis that they were indirectly discriminatory against women claimants who on average earn less than men, and that the Government had not made a proper assessment of the public sector equality duty.
Although the High Court has rejected the claims, a key factor appears to have been the lack of evidence available, given that the regime has only been in place a matter of months.
The Court stated:
"This brings us to a fundamental difficulty with the whole of this case. Brought as it was in the belief that the lawfulness of the regime had to be challenged as a matter of urgency, and in any event within three months, the Court has been faced with judging the regime without sufficient evidence, and based only on the predictions of the rival parties throughout and after the hearing."
Unison has pledged to "fight on" and to appeal to the Court of Appeal against the ruling. While today's decision may not bring an end to the legal process, in reality it is likely to be some time before this is judicially reconsidered. In the meantime, employees will continue to be liable to pay the fees and it seems likely that the current trend of reduced numbers of claims will continue. If that is the case, statistical evidence suggesting claimants are being deterred from taking claims may assist in the future in challenging the lawfulness of the fees. The Government had pledged to refund fees paid in the event the challenge was successful and presumably this pledge applies equally to any successful appeal. However, this action would not assist any would-be litigants who are put off claiming altogether due to fees at this time. They will almost certainly lose their opportunity to do so as a result of the time bar rules as most cases have to be brought within 3 months, and therefore probably won't benefit from any future reversal of the fees regime.
If you have any questions about this or any other employment issues please get in contact.