Union Granted Challenge to Employment Tribunal Fees Move

Unison and the Public Law Project have been granted permission to challenge a Court of Appeal ruling which they lost in August last year over the introduction of employment tribunal fees.

Since July 2013, workers in the UK have been charged a fee to bring a claim to tribunal; a subsequent fee for the claim is then heard and another charge applicable if they want to appeal the decision.

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, which is at the centre of the dispute, imposed fees for the tribunals for the first time. Following the introduction of the fees, Unison sought unsuccessfully to have them ruled unlawful in two High Court challenges.

Unison had argued that the fees made it “virtually impossible to excessively difficult” for some individuals to exercise their European employment rights. The union added at the time that many people will be unable to afford to bring claims against employers.

Drop in claims not entirely down to fees

Back in August, the Court of Appeal ruled that it could not be inferred that a drop in the number of employment claims was entirely down to potential claimants’ inability to afford fees.

Unison’s accusations were unanimously rejected by Lord Justice Elias and Mr Justice Foskett.

Lord Justice Elias described the fees scheme for a whole variety of claims to employment tribunals as “justified and proportionate”.

He said: “I have no doubt that each of the objectives relied upon in this case is a legitimate one and that the scheme taken over all, particularly having regard to the arrangements designed to relieve the poorest from the obligation to pay, is justified and proportionate to any discriminatory effect. Moreover, the costs are recoverable, in general at least, if the claim succeeds.”

The Government opposed the action and said the aim of introducing fees was to “transfer some of the approximate £74m cost of running the employment tribunals and the Employment Appeal Tribunal from the taxpayer to those who use the system'”.

Supreme Court allows appeal

On Friday, the Supreme Court ruled that Unison would be able to appeal in its case against the Lord Chancellor.

The Supreme Court said the issue in the case was whether the Court of Appeal “erred in its approach to the EU principle of effectiveness”, in its “approach to indirect discrimination and in concluding that the fees order was not indirectly discriminatory”.

Welcoming the decision, Dave Prentis, general secretary of Unison, commented: “We’re delighted that the Supreme Court has given us permission to continue our legal fight against these unfair and punitive fees. Three years ago the Government introduced tribunal fees, immediately making it much harder for employees, especially those on low incomes, to challenge bosses who break the law. Unsurprisingly employment tribunal claims have since dropped by 70%. As a result, it’s too easy for bad employers to escape justice.”

A hearing will now take place at a date to be fixed.

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