4 April 2014

By Shantha David, UNISON Legal Services

UNISON is applying to the Court of Appeal for permission to appeal the High Court's decision rejecting UNISON's claim for Judicial Review of the decision to introduce tribunal fees.

The Coalition Government’s decision to introduce fees in the Employment Tribunals and Employment Appeal Tribunals under the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (S.I. 2013 No. 1893) has been widely condemned and was challenged by UNISON in the High Court in October and November 2013.

The effect of this Order is that since the 29th of July 2013, an individual has to pay an initial fee (of £160 or £250) to bring any claim in the Employment Tribunal or any appeal to the Employment Appeal Tribunal; and a further hearing fee (£230 or £950) would need to be paid if the matter then proceeded to a hearing. This Order has brought to an end a 42 year long, accessible statutory scheme which gave effect to employment rights at no cost to the employer or employee, except in limited cases.

Although UNISON’s application for Judicial Review was unsuccessful, the decision highlighted a number of issues in relation to the implementation and effect of fees. The High Court made clear it expects the government to keep this issue under review and revoke or amend the scheme if UNISON’s arguments are borne out.

Pressure from UNISON during the hearing brought a significant concession from the Lord Chancellor, so that successful claimants will now generally have their Employment Tribunal and Employment Appeal Tribunal fees reimbursed by the respondent. Although the Employment Tribunal guidance has been updated, the Employment Tribunal rules are yet to be amended to take account of this.

The errors in the Order, which were highlighted in the High Court, where certain claims were wrongly described as Type B claims, rather than Type A claims, have also now been amended following the High Court decision. The changes mean that Claimants will not have to pay £250 when the fee is actually £160.

Apart from rejecting all four of Unison’s grounds of claims, Lord Justice Moses suggested that it was brought at “the very outset of the introduction of this scheme with little opportunity to see how the scheme for payment of fees and remission will work in practice” and "that it is not possible as yet to gauge the extent of the impact”.

The court made clear that if the figures ‘are anything like accurate then the impact of the fees regime has been dramatic’ and suggested:

“Far better, we suggest, to wait and see whether the fears of Unison prove to be well-founded. The hotly disputed evidence as to the dramatic fall in claims may turn out to be powerful evidence to show that the principle of effectiveness, in the fundamentally important realm of discrimination, is being breached by the present regime. If so, we would expect that to be clearly revealed, and the Lord Chancellor to change the system without any need for further litigation”.

The High Court was of the view that the Lord Chancellor would remedy the effect of fees:

“Quite apart from the continuing obligation to fulfil the duties identified in the Equality Act, the Lord Chancellor has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late”.

On 13 March 2014, the Government published on its website the latest statistics by type and volume of Tribunal cases received as of the third quarter of the financial year 2013/14 (October to December 2013) which can be found here.

These statistics show that the number of claims received in October to December 2013 were 9,801 – 79% fewer than in the same period of 2012, and 75% fewer than the last quarter (i.e. July to September 2013)

In particular there have been 83% fewer equal pay claims compared to the same period in 2012, and 85% less than the previous quarter. Sex discrimination claims have dropped by 77% compared to the same period in 2012 and by 82% compared to the previous quarter.

Jenny Willits MP, minister for employment relations and consumer affairs, has also confirmed that the fees regime is here to stay and will not be removed, although she has said there will be a review.

It therefore remains to be seen whether the Lord Chancellor will “change the system without any need for further litigation” as envisaged by the High Court; or whether this matter will be considered differently by the Court of Appeal.