February 27, 2014

Employment Tribunal Fees to stay…for now

Employments Tribunal fees were introduced last year, requiring claimants to pay fees up front. In reaction, UNISON challenged the validity of the imposition of fees, but was eventually unsuccessful.

UNISON said that the fees are “unjust and discriminatory” and had been widely criticised as having denied people access to justice. Given that the majority of people who would want to bring a claim in the employment tribunal have recently lost their jobs, it is difficult to argue that the fees wouldn’t have an effect on a person’s access to justice. Nevertheless, the judicial review proceedings brought by Unison have been unsuccessful.

In judicial review proceedings, a judge reviews the lawfulness of a decision or action made by a public body, in this case the Government department who introduced the fees.

UNISON sought a quashing order, which would have the effect of setting aside the initial Order introducing fees. The union argued, amongst other things, that: fees are contrary to EU law; the Government’s impact assessment on charging fees did not properly consider the adverse impact on individuals with protected characteristics; charging fees is indirectly discriminatory to women.

The Government argued, in its defence, that remission arrangements ‘should negate or substantially reduce the impact on the claimants with limited financial means, by wholly exempting or providing them with discounts on a sliding scale’.

Unison’s failed challenge means that the fees regime is not unlawful and will continue in its current form. Few employers will be sorry, as the reality for them is fewer employment tribunal claims. The government will be breathing a huge sigh of relief, given that it had already pledged, in the context of Scottish judicial review proceedings, that any fees previously paid would be reimbursed in the event of a successful challenge.

Similar judicial review proceedings brought in Scotland had been stayed pending the outcome of UNISON’s challenge. For the reasons expressed by the Administrative Court in defeating UNISON’s claims, the Scottish proceedings are likely to be unsuccessful.

These reasons relate to the fact that in the court’s opinion, the case for judicial review had been brought prematurely, before the effect of the fees can properly and objectively assessed.

Double Edged Sword for Employers

Whilst employers will largely be pleased at the introduction of the fees, caution should be exercised when a claim is lodged. In the event that the claimant is successful, the respondent (the employer in most circumstances) will normally be ordered to pay the hearing fee or fees. Depending on the nature of the claim, and the number of claimants, this could amount to several thousands of pounds.

The Future

Given that the court relied on the premature nature of the proceedings in defeating the claim, the logical inference ought to be that scrutiny of the fees and their effect is far from over. In a soundbite that the Unions will take some comfort from, the Court made clear that the Lord Chancellor will be under a duty to amend the fees regime if future statistics show that the “principle of effectiveness” (meaning whether the principles behind European Law are being adequately implemented in Member States) is being infringed.

UNISON has declared its intention to appeal to the Court of Appeal, and will at the same time no doubt be furiously collating statistics aimed at demonstrating more clearly than before the detrimental impact on access to justice.

Watch this space. Whether it be a change of Government at some point, or an increased amount of measurable statistics, this matter is far from over.

 

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