Employment tribunal fees appeal fails

The Court of Appeal has rejected Unison’s challenge on employment tribunal fees.

The union argued that the introduction of fees breaches the EU principle of effectiveness on the grounds that they make it unaffordable for many people to pursue a legal remedy, indirectly discriminate against women and breach the public sector equality duty.

Since fees were introduced in July 2013, the number of tribunal claims has fallen significantly. Claimants pay £160-£250 to issue a single claim and £230-£950 for a hearing. Multiple claimant claims cost more. In the Employment Appeal Tribunal it costs £400 to issue an appeal and £1,200 for a hearing. In the past year, the number of single claims has decreased by 52%.

However, the court dismissed Unison’s appeal on all three counts, in R (oao Unison) v Lord Chancellor [2015] EWCA Civ 935.

Giving the lead judgment, Lord Justice Underhill said there was provision for “exceptional circumstances”, which meant the system could not be said to be so unaffordable that no effective remedy existed under EU law. He held that “the case based on the overall decline in claims cannot succeed by itself” and needed to be “accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals”.

Underhill LJ referred to an internal government review of the fees regime, however, and noted that the decline in claims was “sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited”.

Charles Urquart, partner at Clyde & Co, says: “Whilst this decision is good news for employers, as the fee related barrier to entry to bring employment tribunal claims remains in place, it will not be welcomed by low paid employees who feel obligated to bring a claim but who may be priced out of doing so.”

On the government review, Urquart says: “Employers can probably be more relaxed in the knowledge that the government will be reviewing its own law and that, as a result, the fee regime (in one form or another) is probably here to stay—at least for the duration of the present government.”