February 7, 2014

Employment Tribunal fees – Judicial review fails

UNISON has failed to overturn the introduction of fees for Claimants in the Employment Tribunal system.

The High Court in The Queen on the Application of Unison v Lord Chancellor has turned down UNISON’s judicial review application against the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (the ‘2013 Order’).

On the surface this looks great for employers, since it is likely fewer employees will challenge their treatment at work as a result of these fees.

That said, there is now a fee remission scheme in place which can see employees not having to pay any fees to bring a claim. Also, Solicitors’ practices are still offering no win no fee work – with fees covered through insurance schemes – and further, the risk of more complex Employment Tribunal litigation is now very real.

Equally, there is some scope for the Employment Tribunal and Employment Appeal Tribunal fees regime to be reconsidered as its impact becomes apparent.

There were four challenges to the lawfulness of the 2013 Order.

(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, excessively difficult, to exercise rights conferred by EU law;

(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;

(3) That in reaching the decision to introduce the new fees regime and in making the 2013 Order the defendant acted in breach of the Public Sector Equality Duty, and

(4) That the effect of the 2013 Order is indirectly discriminatory and unlawful.

All of the challenges were dismissed by the High Court.

The door may be open to future legal challenges, if not to the fees in principle, then the level of fees and of fees relating to wages claims in particular.  Meanwhile, Unison has issued a press release announcing it intends to appeal the High Court ruling to the Court of Appeal.

Moorepay will keep its clients up to date with any changes on this subject.

Moorepay Compliance represents hundreds of clients in Employment Tribunals throughout the UK. If you would like to know more about our services, please call 0345 184 4615.

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