Trade Union Says It Will Appeal Decision

Unison, the UK's largest union, has said it will continue to fight its ongoing legal battle over the introduction of employment tribunal fees after losing its case in the High Court.

Unison argued that the fees were  ''unfair and punitive'' and “priced thousands of workers out of justice”.

It also said that the fees indirectly discriminate against protected groups such as women, ethnic minorities and disabled people and are unlawful.
 
Since employment tribunal fees were introduced, the numbers of cases recorded has fallen significantly. The latest statistics show that Her Majesty’s Courts & Tribunals Service recorded 74,400 receipts in the period - 71% lower than the same period of 2013.

Compared to the first three months of 2014, single claims in the second quarter of 2014 were down one-third.

Handing down the judgment, Lord Justice Elias rejected the claims made by Unison and said: "I have no doubt that each of the objectives relied upon in this case is a legitimate one and that the scheme taken over all, particularly having regard to the arrangements designed to relieve the poorest from the obligation to pay, is justified and proportionate to any discriminatory effect.

"Moreover, the costs are recoverable, in general at least, if the claim succeeds."

Unison 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."

Glenn Hayes, Employment Partner at Irwin Mitchell, said:

Expert Opinion

Unison has said that it will appeal the judgment and it will be interesting to see its approach. Rather than rely on statistical evidence in relation to the fall in the number of tribunals, the Court says that it needs to assess individual claimants and analyse whether they have been denied justice because of their restricted income. It will not be enough for an individual to show that it is difficult to pay the fee - it must be 'virtually impossible'.

"The Chancellor does have power, something which has not been so far used, to excuse an individual from paying fees. Interestingly the court suggested that claimants should seek to have that discretion exercised before bringing a legal challenge.

"Even if Unison is ultimately unsuccessful, it is very likely that this issue will move up the political agenda during 2015. The Labour Party announced some months ago that if they get into power, they intend to reform the ET system, although they have not said that they will abolish fees. The Government has also indicated that it will be looking very closely at the issue next year and I think that whatever party forms the next government, an adjustment to the scheme and the fee structure is likely in the future."
Glenn Hayes - Partner & National Head of Employment Law