Case summary: UNISON and employment tribunal fees

2 April 2014

Employment Tribunal fees were introduced in the UK on 29 July 2013. The new fees mean that the cost of pursuing a single claim in the Employment Tribunal can be up to £1,200, depending on the category of the claim that is being brought.

UNISON recently applied for a Judicial Review to challenge the lawfulness of the new Employment Tribunal fees. UNISON argued, amongst other things, that the introduction of fees makes it excessively difficult for individuals to exercise their EU employment rights and that the fees are discriminatory, because they have a disproportionately adverse impact on protected groups, such as women.

Lord Justice Moses observed that the fundamental difficulty with the case was that it had been brought prematurely.  There was a lack of evidence to prove that fees deter claimants on low incomes from bringing Employment Tribunal claims.  UNISON relied on provisional figures produced by the Ministry of Justice, showing that there has been a dramatic drop in certain types of claims being brought at the Employment Tribunal during the three month period immediately following the introduction of fees.

Factual evidence also focused on eight notional individual claimants, in order to assess whether the fees made it “excessively difficult” for individuals to exercise EU employment law rights.  The Court concluded that although proceedings would be expensive, there would be sufficient opportunity for families on very modest means to accumulate the funds to pay the fees. 

The High Court recognised that the introduction of Employment Tribunal fees could potentially bar access to justice for workers who have been treated unfairly, however, it dismissed all of UNISON’s grounds for a Judicial Review.  UNISON would not be prevented from bringing a fresh challenge in due course, but the outcome of any such challenge would depend on the impact of the fees over a longer period of time.  The High Court also indicated that the Ministry of Justice guidance should be amended to state that successful claimants should now generally be entitled to recover the Employment Tribunal fees that he or she has incurred in bringing his or her claim(s) from the Respondent.

Although this is a small victory for UNISON, it is doubtful that this decision will reduce the impact of the fees, as in many cases the Claimants will not have the money to pay the fees up front in the first place, or the fees will deter them from taking the risk of bringing a claim. UNISON has indicated that it intends to appeal the decision, in particular so that the Court of Appeal can consider its arguments in relation to the disproportionate adverse impact that the introduction of Employment Tribunal fees has on women.

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