UNISON unsuccessful again at the High Court
The introduction of Employment Tribunal fees in summer 2013 was controversial from the outset and has been the subject of two, high profile judicial review applications by UNISON.
In February 2014, the High Court dismissed the first application on the basis that it was too early to assess the full impact of the introduction of fees. UNISON had relied on hypothetical examples to illustrate the impact of the fees on three claimants. The High Court held that these did not provide sufficiently robust evidence that the fee regime should be overturned. UNISON then lodged an appeal at the Court of Appeal.
Fast forward to October 2014 and the second judicial review application. By then, the Ministry of Justice had published a series of quarterly Employment Tribunal statistics which showed an ongoing fall in the number of Employment Tribunal claims. For instance, in the period October to December 2013, the first full quarter since fees were introduced, the statistics showed a 79% fall in claims compared to the same period in 2012. The most recent statistics, for the period July to September 2014, showed a 66% fall in claims. UNISON relied on the statistics in support of its argument that the introduction of Employment Tribunal fees:
- Denied access to justice for individuals with legitimate claims and breached the EU principle of effectiveness.
- Indirectly discriminated against certain groups such as women and ethnic minorities because of the higher fee that was payable for Type B claims which included discrimination claims.
UNISON did not rely on any actual instances of individuals who asserted that they have been or would be unable to bring claims and unlike its first application, UNISON did not refer to hypothetical examples.
On 17 December 2014, the High Court gave its judgment and dismissed the application. It acknowledged that the statistics “demonstrate incontrovertibly” that the fees have had a significant impact on the number of Employment Tribunal claims. However, the statistics did not prove that individuals were unable, as opposed to unwilling to pay the fees. There was no evidence that any actual individual had been unable to bring a claim because of cost and so the High Court could not assess whether the principle of effectiveness had been breached.
As for the argument about indirect discrimination, the more recent statistics showed that the proportion of men and women paying the higher Type B fee (45% women and 55% men) generally reflected the gender balance of the workforce and was not discriminatory. In addition, there were three aims for introducing Employment Tribunal fees: to assist with the running costs of Employment Tribunals, to deter claims with no merit and to encourage other methods of dispute resolution. These were held to be legitimate aims. Disagreeing with UNISON, the High Court held that cost saving was not the sole or main aim for the introduction of fees.
UNISON describe the decision as disappointing and a “missed opportunity” and the High Court has given permission to appeal to the Court of Appeal. UNISON has confirmed that it will apply to have both appeals heard together and is seeking an expedited hearing.
There may be further developments on this topic in the year ahead whether at the Court of Appeal or if there is a change of Government. Back in September 2014, the Labour party described the current system as “unfair and unsustainable”. It proposed a major reform of the Employment Tribunal system although this is unlikely to mean the abolition of Employment Tribunal fees entirely.