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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Judicial Review of Employment Tribunal Fees Rejected – but court adopts a “wait and see” approach
19 February 2014

Unison has failed in its challenge to the introduction of fees in both the Employment Tribunal and Employment Appeal Tribunal; however, a “wait and see” approach adopted by the Court and Unison’s intention to appeal may mean the issue of fees has not gone away. We report on the judgment… 

What were Unison’s points of issue?

Unison brought a judicial review of the newly introduced Employment Tribunal fee system on 4 grounds:-

  1. Fees restrict a claimant’s ability to protect and enforce their European legal rights

    Do fees ‘put off’ would-be claimants seeking to enforce their EU rights? Although the Court did accept that bringing a Tribunal claim is ‘expensive’, it did not accept that it was impossible of “excessively difficult”. The Court felt that the new remission system which meant that claimants with certain income or capital levels could be exempt from all/some of the fees acted as a safeguard and allowed access to justice. The Court also said that there was sufficient time in between the payment milestones to allow families to accumulate the “funds to pay”.

  2. Fees in the Employment Tribunal System are not the same as those in other courts

    The Court compared the levels of the new Employment Tribunal fees against fees in the County Court and held that they were comparable. It also felt that the new ACAS early conciliation scheme from 6th April 2014 introduced free access to justice.

  3. The introduction of fees breached the public sector equality duty

    Again, the Court felt there were sufficient safeguards in the new fee system – for example, remission – which again sought to eliminate any barriers in bringing a claim.

  4. Fees are indirectly discriminatory

    As with argument 1, the Court did not have enough evidence to find that women, the disabled or ethnic minorities were put at a disadvantage and unable to bring claims because of the new fee regime. However, if over the coming months there is evidence that fees are having a disparate effect on those with a protected characteristic then the Lord Chancellor would be duty bound to take remedial action to remove any disadvantage.

Final word?

Overall, the view was that Unison’s challenge was ‘premature’ as many of Unison’s statements that hypothetical claimants would be prevented from bringing claims or be put at a disadvantage were not substantiated by actual facts or statistics to date.

It is unlikely, however, that this is the end of the story. Much will depend on statistical evidence as to whether there has indeed been a continued and sustained fall in the number of claims or whether the statistics we have to date merely follow a pattern or include seasonal ‘blips’. Statistics show peaks and troughs in claims being brought but has there been a sustained reduction since July 2013? If there is a challenge it may not be to the introduction of fees per se but instead to the levels of fees and in particular, the level of fees for Type B claims which includes unfair dismissal and discrimination claims.

Recoupment of Fees?

Interestingly, there is no automatic right under the new 2013 Employment Tribunal Rules for the losing respondent to automatically pay the winning Claimant’s fees. Under the new Rules, recovery of ‘fees’ are to be considered as part of the Employment Tribunal’s overall power to award costs following an application from the Claimant. However, in a case reported last week (Portnykh v Nomura International plc) the Employment Appeal Tribunal (EAT) has made a conditional costs order requiring the respondent to repay the claimant’s £1,600 fees in respect of his successful appeal. The EAT made the order conditional on the claimant’s pending application for fee remission being rejected. It seems that the issue of fees will continue to make the employment news headlines for a while to come.

For further information, please contact our Employment Team on 0118 952 7284 or submit an enquiry.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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