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High Court dismisses challenge to employment tribunal fees

Court describes fall in the claims as 'striking' and 'dramatic but needs more evidence

17 December 2014

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The High Court has dismissed a second application by Unison for judicial review of the employment tribunal fees regime.

Britain's biggest trade union had sought to question the legality of fees, which were introduced by the government in July 2013. The government's decision to introduce fees was challenged by Unison in the High Court in October 2013 and again in October 2014. The union argued that the introduction of fees would deny access to justice for workers.

Despite having already had an earlier application for judicial review dismissed in February, Unison felt it had a greater chance of success with its latest application following new evidence that the fees were having a disproportionate effect on women, low-paid staff, disabled people and black and Asian workers.

Unison's evidence showed a 91 per cent drop in sex discrimination claims, and an overall drop in claims of 80 per cent. The High Court described the fall in the number of claims as "striking" with Lord Justice Elias anticipating that some workers would have insufficient funds to bring claims.

However, the High Court ultimately ruled there was still insufficient evidence to show the fees were making it more difficult for employees to bring cases to a tribunal.

Mr Justice Foskett agreed that the effect of the introduction of the new regime has been dramatic but said: "Before the court could begin to act it would need to be satisfied that a more than minimal number of people with arguably legitimate claims would find it virtually impossible or excessively difficult to bring such matters before an employment tribunal because of the fees that would require to be paid."

Commenting on the decision, Unison's general secretary, Dave Prentis, said: "The High Court's decision is disappointing but we will fight on and do everything possible to ensure that these punitive fees introduced by the government are abolished. Today's ruling is a real missed opportunity to ensure that all workers can afford to bring an employment tribunal claim. Since the introduction of fees last year, thousands of workers have been priced out of justice and we must not let this continue to happen."

However, Unison has been granted permission to appeal the High Court's decision. The Court of Appeal has already agreed to hear Unison's appeal of the earlier High Court decision from February.

Prior to the introduction of fees in July 2013, the Employment Tribunals received an average of 48,000 new claims per quarter. The introduction of the tribunal fees regime in has had an impact on the number of claims made. According to official government figures, claims between January and March 2014 fell to 6,019, the equivalent of an 81 per cent drop when compared to the same quarter in 2013. The last quarter of 2013 saw claims decrease by 79 per cent, compared to the equivalent quarter of 2012.

Shadow business secretary Chuka Umunna commented: "If we are elected, the next Labour government will abolish the current system, reform the employment tribunals and put in place a new system which ensures all workers have proper access to justice."

The full High Court judgment can be found here.

 

John van der Luit-Drummond is legal reporter for Solicitors Journal

Election battleground

Kevin Poulter is SJ's editor at large and a Legal Director in the employment team at Bircham Dyson Bell

It had been hoped that this second application by Unison would be successful, having more evidence to support the claim that genuine claimants were being restricted in their access to justice in the Employment Tribunals. Despite compelling evidence, and statistics being cited in parliament to suggest a failing of the new regime, the High Court still considered it insufficient.

The new evidence highlighted the disproportionate effect on women, low-paid staff, disabled people and black and Asian workers, but the court's insistence that this did not adequately prove that a "more than minimal number of people with arguably legitimate claims would find it virtually impossible or excessively difficult to bring such matters before an employment tribunal because of the fees that would require to be paid".

This has left the current Employment Tribunal system open as a campaign ground in the forthcoming general election, with an appeal of the first application expected to be heard in the New Year. Labour has already suggested that, should they come to power, a review of the current system would take place.

Until then, it remains business as usual. Claimants who believe they have valid claims should not be deterred from seeking legal advice. Despite the press surrounding the huge reduction in the number of claims, employment lawyers should take care to advise potential claimants of the potential success of early ACAS conciliation ahead of any fees becoming due and the chances of recovery of such fees in the event of tribunal success.


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Discrimination