Are Tribunal Fees here to Stay?

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The High Court has delivered its Judgment on the much published case of Unison’s judicial review of the Tribunal fees. The claim failed but Unison has publically stated that it intends to appeal against the decision.

The full Judgment makes interesting reading as the Court grabbles with the balancing of the rights of those bringing the claim and the objectives of the introduction of the fees by the Government. The challenge by Unison had four points. Firstly, that the requirement to pay a fee violated the principle of effectiveness as it made it virtually impossible or excessively difficult to exercise rights conferred by the EU.

Unison produced figures to the Court which it said showed a drop of between 56 – 88% in the number of Employment Tribunal cases (depending on the type of case and the region) from the September 2012 compared with September 2013. The Government’s response was that it was too early to rely on the accuracy of the figures given, which were hotly disputed. The Court felt that that if they were anything like accurate then the impact of fees had been dramatic. The Government felt that the Court should wait and see how the scheme worked in practice and that the Claim was premature. The Court agreed the Claim was premature and gave a strong indication that if the figures are right over a longer period then this may turn out to be powerful evidence of the basis for Unison’s challenge and the Court would expect the Government to change the system without any need to litigate further.

Secondly, that the requirement violates the principle of equivalence compared with the County Court which was rejected because the Tribunal Service have now made it clear that Claimants who succeed will automatically recover their fees from the other side. Thirdly, that the fees breach the Public Sector Equality Duty and finally that the fees are indirectly discriminatory and unlawful. On both these grounds the Court found again that it was too early to assess and that as per the first ground the Government was under a duty to keep this under review.

The Court went on to comment that the difficulty with the case was the urgency with which it was brought which did not allow sufficient evidence of the impact on the number of claims to be gathered. The Court said that it seemed more satisfactory to wait and see and hold the Government to account should the optimism as to the fairness of the fees regime prove unfounded. So whilst Tribunal fees are here to stay for now this may not be the case forever. If the statistics continue to show such dramatic reductions in claims then the Government has pledged to review the matter, that is, if the appeal does not do this first. As always watch this space…

Written by
Edward Aston
12th February 2014