Union Gets Supreme Court Go Ahead For Action Over Employment Tribunal Fees

Expert Lawyers Say Government And Unison Unlikely To Back Down


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A union has been given the green light to take legal action against the Government’s decision to make workers pay employment tribunal fees, to the highest court in the UK.

Experts at law firm Irwin Mitchell say the long running battle between Unison and the Government is unlikely to end any time soon, after Supreme Court justices gave the go-ahead to the UK’s largest trade union to challenge a Court of Appeal ruling, from August last year, over the introduction of employment tribunal fees.

Unison claimed the fees were "unfair and punitive", and argued that the majority of people would  not be unable to afford to bring claims against employers.

The changes at the heart of the matter, introduced under The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, meant that for the first time workers were charged a fee to bring a claim, a fee if the claim is heard and a further charge to appeal decisions.

Today the Supreme Court announced Unison had been granted permission to appeal in its case against the Lord Chancellor.

The trade union’s judicial review action was heard by appeal judges following the loss of their case at the High Court in December 2014.

During the High Court proceedings Unison claimed the new fees regime were in breach of EU legal principle and rendered employment rights "illusory".

It also made allegations that indirectly the new law discriminated against women, ethnic minorities and the disabled without any justification.

The accusations were unanimously rejected by Mr Justice Foskett and Lord Justice Elias who said the fees scheme was "justified and proportionate".

The Government fought the action claiming the aim of rolling out a fees scheme was to "transfer some of the approximate £74m cost of running the employment tribunals and the Employment Appeal Tribunal from the taxpayer to those who use the system''.

Unison suffered a further defeat at The Court of Appeal when they challenged the High Court decision.

The Supreme Court said the issue in the case was whether the Court of Appeal "erred in its approach to the EU principle of effectiveness", in its "approach to indirect discrimination and in concluding that the fees order was not indirectly discriminatory".

Expert Opinion
There is evidence that the remissions system is doing very little to protect access to justice, not least because the criteria and process for obtaining fee remission are anything but simple.

The substantial fall in the number of discrimination claims since July 2013 is well documented, with the figure for sex discrimination claims most commonly cited by MPs and others.

It would appear that women have been big losers under the fees regime, with both sex discrimination and equal pay claims depressed markedly more than those in other countries.

The legal challenge is focused on indirect discrimination and Unison said that the Court of Appeal, in effect, made a mistake in finding that the rules did not adversely affect these protected groups even though it accepted that there had been a significant decline in the numbers of claims.

It said that relying on the figures alone did not necessarily mean that claimants were unable to pay the fees. Whether the Supreme Court will reach a different decision remains to be seen, but this is a public policy issue and the Court may be reluctant to disrupt the status quo.

There's no doubt that the fall in claim numbers due to the introduction of fees is having the effect desired by the Government in significantly reducing its multi-million pound bill for running the Tribunal service. The fall in claim numbers also hurts the power and sway of the trade unions, so they will fight this all the way. For those reasons, neither the Government or the unions are likely to back away from this fight any time soon.
Omer Simjee, Partner

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