Challenge on Employment Tribunal Fees Dismissed by Court of Appeal

The Court of Appeal has dismissed Unison’s challenge against the introduction of fees in employment tribunals and the Employment Appeal Tribunal (EAT) in the case of R (Unison) v Lord Chancellor and another.

R (Unison) v Lord Chancellor and another – A Case Overview

Unison, one of the UK’s largest trade unions, with 1.3 million members, argued that tribunal fees prevent claimants from having access to justice, that the regime was indirectly discriminatory, and that the Lord Chancellor had failed to satisfy the public sector equality duty.

Tribunal fees were introduced on the 29th of July 2013. Unison challenged the lawfulness of the fees by way of judicial review. The High Court heard the claim, which was dismissed in February 2014. The High Court believed that the claim was premature because of the lack of evidence available on the impact of the fees.

Further proceedings were filed by Unison in September 2014 as the trade union was able to rely on further evidence as to the impact of the fees. This claim was again dismissed by the High Court yet permission was granted to appeal both decisions before the Court of Appeal.

The Court of Appeal acknowledged that there were compelling statistics showing the decline in the number of claims brought to employment tribunal. Lord Justice Underhill noted that such a decline must reflect at least some cases of claimants being unable to afford to pay. However, the Court of Appeal concluded that figures relating to the volume of claims, on their own, could not constitute a safe basis for concluding that the fees were unlawful and dismissed the claim.

Lord Justice Underhill stated that he was tempted by Unison’s argument that the statistics should speak for themselves, in showing that tribunal fees were making it impossible/excessively difficult for a substantial number of claimants to bring a claim. However, his reluctant conclusion was that there was no safe legal basis for such a finding.

Lord Justice Underhill noted that the decline in the number of claims in the tribunals following the introduction of the fees was sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited. Unison has subsequently applied for permission to appeal the decision to the Supreme Court.

The Ministry of Justice is currently undertaking a review of employment tribunal fees whilst a separate inquiry into the effect of those fees is being undertaken by the Justice Committee. It is expected that the findings will be announced in late 2015. The Scottish Government has already taken steps to announce plans to abolish fees for employment tribunals in Scotland in their 2015-16 Programme for Government.

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