“Regulation beyond the echo chambers”: who is listening?
Employment Tribunal fees were introduced for the first time in the UK on 29 July 2013 under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI2013/1893). The new fees mean that the cost of pursuing a single claim at the Employment Tribunal can be up to £1,200, depending on the category of the claim being brought.
UNISON recently applied for a Judicial Review to challenge the lawfulness of the new Employment Tribunal fees (The Queen on the Application of UNISON v Lord Chancellor). UNISON argued 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 women, more of whom work part-time due to childcare responsibilities, and who tend to be lower earners than men.
Decrease in Employment Tribunal claims
UNISON relied on provisional figures produced by the Ministry of Justice showing that there has been a dramatic drop in certain claims being brought at the Employment Tribunal, during the three month period immediately following the introduction of fees. UNISON argued that from September 2012 to September 2013 there had been the following reductions in claims being brought at the Employment Tribunal:
UNISON argued that this significant drop in numbers shows that individuals are being immorally priced out of obtaining legal redress.
Although the High Court recognised that the introduction of Employment Tribunal fees could potentially bar access to justice for workers who have been treated unfairly, it dismissed all of UNISON’s grounds for a Judicial Review. The High Court determined that UNISON’s claim was brought prematurely and that there was a lack of evidence to prove that fees deter claimants on low incomes from bringing Employment Tribunal claims. The Lord Chancellor stated that UNISON would not be prevented from bringing a fresh challenge in due course, but that the outcome of any such challenge would depend on the impact of the fees over a longer period of time.
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.
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 from the Respondent the Employment Tribunal fees that he or she has incurred in bringing his or her claim(s). This view was supported in the recent EAT case of Portnykh v Nomura, which held that an unsuccessful Respondent in an EAT case will normally have to reimburse the successful Claimant the cost of the issue and hearing Tribunal fees, unless the Claimant has benefitted from the fee remission scheme. 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.
Are Employment Tribunal Fees here to stay?
We will have to “wait and see” whether Employment Tribunal fees are here to stay. This will depend on whether, in due course, there is substantial evidence which supports UNISON’s submissions about the significant drop in the number of claims overall and the indirectly discriminatory impact on women. In the meantime, the fees will almost certainly put off many individuals and low paid workers from bringing proceedings, whether they have a strong case or not. It is hoped that the fees will deter vexatious litigants from bringing spurious claims and consequently that should speed up the Employment Tribunal process for everyone else and reduce the cost to the taxpayer of running the Employment Tribunals. Arguably, these benefits may come at the cost of some individuals being treated unfairly by being unable to afford to protect or enforce their statutory or contractual rights.
Most individuals who are considering litigation will try to assess, at an early stage, whether the likely costs of bringing proceedings will outweigh the benefits. However, with Equality Act Questionnaires due to be abolished on 6 April 2014, individuals bringing discrimination proceedings may have less access to information and therefore may be in a less well informed position. Although there are other means of obtaining information to support discrimination claims, it may well become more difficult for such individuals to assess the merits of their claims at an early stage. Consequently, the effect of the introduction of Employment Tribunal fees coupled with the abolition of the Equality Act Questionnaire seems likely to discourage individuals with protected characteristics from bringing claims. By the time sufficient evidence and statistics have been collated in order to support UNISON’s claim, it may be too late for many individuals, who, may feel they have been priced out of justice. Quite where that leaves the debate it is difficult to gauge, but one suspects there will be much further discussion in the corridors of power before this issue is settled.
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