Date set for justice over tribunal fees

UNISON, the UK’s largest union, today welcomed the decision by the High Court to fast track the unions call for a Judicial Review. The union is challenging Government plans to introduce fees for claims in the Employment Tribunal and Employment Appeal Tribunal.

The fees are due to come in on 29 July 2013 and a judge has looked at UNISON’s challenge and decided it merits speedy consideration.

Dave Prentis, General Secretary of UNISON said:

“The Government should not put a price on justice – that is why UNISON is calling for a Judicial Review. The timetable is extremely tight and it is good news that the judge has cut it short and will decide whether we have permission to proceed by no later than 22 July.

“We also welcome the indication that if permission is granted, consideration may be given to deferring implementation of the new fees regime until our challenge is determined. This is vital because 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.”

In the meantime, UNISON is applying for an urgent interim order to stop the implementation of the new fees regime until the court rules on its legality, to make sure that workers are not deterred from bringing tribunal claims.

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-£960 and hearing fees between £460-£5700 (hearing fee).