26th February 2014

Employment Tribunal Fees – Judicial Review Challenge Dismissed

The High Court has recently provided its decision in relation to the lawfulness of introducing fees in the employment tribunal.  This follows a judicial review application by Unison challenging the introduction of fees in the employment tribunal.

Fees were introduced in the employment tribunal and the employment appeal tribunal (EAT) in July last year.  The current fee regime requires a claimant to pay a fee both upon submitting their claim to the employment tribunal and also prior to the substantive hearing of their claim.  The level of fee required to be paid also varies depending upon the type of claim being pursued – the issue fee for a Type A claim (for example, claims for statutory redundancy payments, unlawful deductions from wages and breach of contract) is £160 and the hearing fee is £230. The issue fee for a Type B claim  (for example, unfair dismissal, discrimination and whistleblowing) is £250 and the hearing fee is £950. Individuals can apply for a full or partial fee remission which takes into account disposable capital and gross monthly income.

Unison challenged the introduction of the fee regime on four separate grounds:-

• The requirement to pay fees as a condition of access to employment tribunals and the EAT breached the EU principle of effectiveness because the requirement makes it “virtually impossible, or excessively difficult” to exercise rights conferred by EU law.

• The level at which fees are set breaches the requirement that domestic rules of procedure for the exercise of rights derived from EU law are no less favourable than those governing similar domestic actions.

• That in introducing fees the Lord Chancellor breached his duty to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between those who share protected characteristics and those who do not.

• That requiring higher fees in Type B claims indirectly discriminates against protected groups, such as women, ethnic minorities and disabled people.

The High Court dismissed Unison’s challenge primarily on the basis that it had been brought prematurely and that the evidence required to persuade it to overturn the fees regime had been absent.

In view of the High Court’s decision, the fee regime will continue, however scrutiny of the impact of the introduction of fees is far from over.  Indeed, the court made it clear that the Lord Chancellor will be under a duty to amend the fees regime if future statistics show that the “principle of effectiveness” under EU law is being infringed.  Unison has stated its intention to appeal to the Court of Appeal.