Legal Experts React To Court Of Appeal Ruling

The Court of Appeal’s decision to dismiss a legal challenge related to the tribunal fees system has put an emphasis on the ongoing Government review of the process, according to specialist employment lawyers.

Employment Tribunal Fees were introduced in July 2013, and sees claimants pay tribunal fees up to £1,200 depending on the type of claim they make.

Unison had argued that a dramatic drop in the number of Tribunal claims being brought – up to 79% in the first year, according to the TUC – had “no obvious explanation, other than the introduction of fees”.

They also alleged that the fee system had a disproportionate impact on women, and those with other protected characteristics. These claims, and Unison’s appeal, were yesterday dismissed by the Courts.

Whilst Lord Justice Underhill in the Court of Appeal acknowledged that the sharp decline in employment tribunal claims was “troubling”, he held that in order for Unison’s case to succeed, evidence would need to be provided to demonstrate the actual affordability of the fees in the financial circumstances of typical claimants.

It was pointed out that because “fee waivers” are available in “exceptional circumstances”, then it could not be said that the fee system in general was unaffordable.

Lord Justice Underhill did, however, observe that the Government has recently committed to a review of the Employment Tribunal fee system.

The review, announced in June 2015, will consider how effective the introduction of fees has been at meeting the original objectives, while maintaining access to justice.

The Government has stated that they will take into account a wide range of evidence, including;

• Tribunal data on case volumes, case progression and case outcomes;
• Qualitative research on the views of Court and Tribunal users;
• The general trend of the number of cases appearing at Tribunals before the fees were introduced;
• Any consequences arising as a result of an improved economy on the number of people being dismissed;
• To what extent there has been discouragement of weak or unmeritorious claims; and
• Whether there has been any impact because of changes in employment law; and other reasons for changes in user behaviour

The review is expected to be completed later in the year, following which there will be consultation on any proposals for reforms to the fees and remissions scheme.

Expert Opinion

“Following yesterday’s announcement that the latest legal challenge to the Employment Tribunal Fee regime had failed, it would appear that the Courts are looking for evidence gathered through the recently announced Government consultation on this issue to determine whether the introduction of fees is actually preventing access to justice for Claimants on the grounds of affordability. <br/> <br/>“Unison, the UK’s largest union, had appealed to the Court of Appeal against the dismissal of their claim in the High Court that the introduction of fees was unfair and discriminatory, as many people would be unable to afford to bring claims against their employers. <br/> <br/>“Unison’s action was backed by the Equality and Human Rights Commission.” Glenn Hayes - Partner