Employment Tribunal fees – the challenge continues?
The introduction of Employment Tribunal fees in summer 2013 was controversial from the outset and the lawfulness of the fees regime was challenged almost immediately by UNISON. It brought two separate, high profile, judicial review applications but these were dismissed by the High Court in February and October 2014.
Undeterred, UNISON then pursued the matter to the Court of Appeal on the basis that the introduction of Employment Tribunal fees restricted access to justice and was indirectly discriminatory. In August 2015, the Court of Appeal dismissed UNISON’s challenge. So is it the end of the line for UNISON? Not necessarily. It has now applied for permission to appeal to the Supreme Court.
In relation to access to justice, UNISON argued that the fees regime breached the “principle of effectiveness” because the level of fees and remission criteria meant that potential claimants were denied access to an effective remedy. In support of this argument, UNISON relied on the continuing, significant fall in the number of Employment Tribunal claims. For the period April to June 2014, according to Ministry of Justice figures, there was an 81% fall in claims compared to the same period in the previous year. Statistics published in September 2015 showed that in 2012/13, on average, 52,000 new claims were received per quarter by Employment Tribunals. This declined to an average of 26,500 per quarter in 2013/14 and to 15,500 per quarter in 2014/15. The figures for April to June 2015 show there were 12,563 new claims.
The Court of Appeal described the decline in the number of claims as “startling" and felt that this could not be explained simply by individuals refusing to pay the fees. There had to be some instances when individuals were unable to pay the fees. However, the statistics on their own were not enough to conclude that the fees regime was unlawful.
UNISON also argued that the fees regime indirectly discriminated against women because the issue fee of £250 for Type B discrimination claims was higher than the £160 issue fee for Type A claims such as breach of contract. This meant that as more discrimination claims were brought by women, a greater proportion of women than men had to pay the higher fee to commence their claim. The Court of Appeal held that the two-tier fees regime was objectively justified because discrimination claims placed a greater demand on the Employment Tribunals’ resources. In any event, the higher issue fee applied to all Type B claims including unfair dismissal and not just discrimination claims and the higher fee applied therefore to all Type B claimants.
Finally, the Court of Appeal dismissed UNISON’s argument that the Lord Chancellor had breached the public sector equality duty under section 149 of the Equality Act 2010. This provides that due regard must be given to the need to eliminate unlawful discrimination, to advance equality of opportunity and to foster good relations between persons who share a relevant protected characteristic and those who do not. The Court of Appeal concluded that in the Equality Impact Assessment, the essential issues had been conscientiously considered and rational conclusions reached.
UNISON described the Court of Appeal decision as “a huge disappointment and a major setback for people at work” and confirmed that its challenge to the fees regime will continue.
Notwithstanding further litigation, there may be other developments relating to the fees regime in the months ahead. The government is expected to publish its findings following the review of Employment Tribunal fees (announced in June 2015) by the end of the year. The review includes consideration of the general trend of Employment Tribunal claims before and after the introduction of fees and whether there has been a fall in the number of unmeritorious claims. In addition, the Scottish government recently published its Programme for Scotland 2015/16 and announced its plans to establish a devolved Employment Tribunal system and to abolish Employment Tribunal fees.
In short, the Employment Tribunal fees story is not over yet and we will continue to keep you updated.