Court Says Too Soon To Assess The Impact Of The Fees Regime

The High Court has today rejected Unison’s arguments that the introduction of fees for bringing  claims in the Employment Tribunals are unlawful.  A similar claim in the Scottish courts was stayed pending the outcome of this case but is also likely to be unsuccessful.

Unison brought judicial review proceedings against the Government following the introduction of a range of fees for lodging claims and appeals and for taking them to a full hearing. There were four main grounds of objection:

• The requirement to pay fees as a condition of access to the Employment Tribunal and Employment Appeal Tribunal will make it virtually impossible, or excessively difficult, to exercise rights conferred by EU law, therefore offending  the “principle of effectiveness”; 
• It also offends the “principle of equivalence” since the requirement to pay fees, or fees at the levels prescribed, means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions;
• That in reaching the decision to introduce the new fees regime and in making the 2013 Order the defendant acted in breach of the Public Sector Equality Duty, and
• That the effect of the 2013 Order is indirectly discriminatory and unlawful.

The union argued that the rate of the fees was prohibitive to most employees earning an average wage and that this impacted on their right to a fair hearing, both under UK and European law.  It also argued that in many cases it would cost more to bring the claim than the employee can expect to receive and that this will act as a disincentive to bring claims, particularly for poorly paid workers.

All of the grounds were rejected. In brief:

• The Court decided that the fees regime provided ‘…sufficient opportunity even for families on very modest means…’ . It also said: ‘…Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult…’ There were also ways to manage cases to reduce the chance of hearing fees being paid unnecessarily.
• The “principle of equivalence” was not breached – there are advantages to the tribunal system over other courts and the costs regimes were different, in any event.
• The Public Sector Equality Duty was not breached - there had been sufficient consultation and the fee remission scheme ameliorated the possible impact.
• Indirect Discrimination: the Court felt that a Judicial Review was not the appropriate way to resolve the evidential issues. However, the court noted that the impact of the fees regime is to be closely monitored by the Lord Chancellor and that if it becomes apparent that it has a disparate impact on individuals falling within a protected class, he would be ‘under a duty to take remedial measures to remove that disparate effect.’  If he fails to do so, the court has left the door open to considering a further challenge in the future, indicating to both Unison and the Equality and Human Rights Commission which intervened in the case, that such a challenge would need to be based on accurate figures and evidence.

Expert Opinion

In effect, therefore, the application was rejected on the basis that it is simply too soon to assess the impact of the fees regime. The court had been asked to consider substantial evidence, much of it concerning hypothetical claimants and the predicted effect that charging fees would have on their ability to bring claims. <br/> <br/>"Meanwhile, this is good news for employers. Until the introduction of Employment Tribunal fees in July 2013, individuals had nothing to lose by issuing claims, leaving employers with the cost and inconvenience of defending sometimes unmeritorious claims. <br/> <br/>"However, even at this early stage, evidence suggests that claim volumes have reduced as a result of the fees regime – as well the impact of other considerations such as the increase to two years of the qualification period for bringing a claim – as Claimants now have to balance the cost of the fees against the likelihood of succeeding."