UNISON demands equal access to justice

“It is completely wrong for access to the law and employment justice to be based on what you can or cannot afford” said Dave Prentis, General Secretary of UNISON today. The union is challenging the decision by the Ministry of Justice to bring in fees for claims in the Employment Tribunal and Employment Appeal Tribunal on 29 July 2013, by calling for a Judicial Review.

UNISON is applying to the High Court to judicially review the decision having written to the Ministry of Justice on 1 June 2013, warning them if they did not revoke this legislation, the union would lodge proceedings.
Contrary to EU law, by bringing in these charges the government will make it virtually impossible for a worker to exercise their rights under employment law. The new fee regime will impose fees which will often be greater than the expected compensation, even if the claims were successful.   

Dave Prentis went on to say:

“The Government should not put a price on justice – that is why UNISON is calling for a Judicial Review.   These charges are a blatant attempt to stop working people from exercising their employment rights.  It will give unscrupulous employers the green light to ride roughshod over employees’ already very basic, rights at work.

“The Government like to talk about equality but these charges will hit women in particular hard.   We do not have class actions in this country and over the years UNISON has lodged equal pay claims for hundreds and thousands of women. If those women did not have union backing, and had to pay up front for access to justice, many would have
lost out.

The union is highlighting that, had the government conducted a proper assessment, it would have discovered charging high fees was disproportionate to the numbers of claims brought by individuals with protected characteristics and the low compensation that is often awarded. A Ministry of Justice study has said a third of all claimants had not even received their Employment Tribunal awards a year after judgment was given.

Legal arguments:
1.         In accordance with EU law, national courts must not make it virtually impossible, or excessively difficult, to exercise individual rights conferred by European Community law. When considering litigation a reasonable person will calculate whether the likely costs of proceedings outweigh the benefits. [Median awards are low; and even where individuals are successful, research commissioned by the MOJ in 2009 found that of those awarded compensation by the Employment Tribunal, 39% had received nothing from the employer 42 days after judgment. One year after judgment 31% had still been paid nothing. In order to comply with EU law, the right to bring such a claim must be fully effective]. However, the new fee regime will impose fees which will often be greater than the expected compensation, even if such claims were successful. They are set at a level which is prohibitive even to those entitled to partial remissions. Reasonable people will not litigate to vindicate their EU rights in such circumstances.

2.         Fees are not payable at all in most claims brought to the First-Tier Tribunal, a similar tribunal at the equivalent level in the judicial hierarchy to the Employment Tribunal. It is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law.

3.         There has been no proper assessment of the Public Sector Equality Duty. An assessment should then have been made of the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics which would previously have been brought and will now not be pursued.

4.         Indirect discrimination. Eg. Charging prohibitively high fees to pursue such claims will therefore have a disproportionate adverse impact on women. Given that women will not (if they earn an average income) be entitled to any remission of fees in the Employment Tribunal, it is difficult to see how that impact could be said to be a proportionate means of achieving a legitimate aim.
Notes to Editors
Until now there has been no charging regime for bringing claims to the Employment Tribunal and Employment Appeal Tribunal.
There is a provision for the remission or part-remission of fees but this is dependent on whether a person is in a couple or has children, or whether they earn below a certain gross annual amount.]
Fees start at around £160 to issue a claim, rising to £250 a claim depending on the type of claim; which a further hearing fee starting at £230 to £950. Where claims are issued by a group, issue fees range from £320 and £460 (hearing fee). For a simpler “Type A” claim with 2-10 claimants) to £1500 (issue fee) and £5700 (hearing fee) for a more complex “Type B claim” with over 200 claimants.