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Tribunal fees judicial review result

On 7 February 2014 the High Court rejected UNISON’s judicial review application against the Government’s decision to introduce Employment Tribunal and Employment Appeal Tribunal fees.

However, there does appear to be scope for the fee system to be reconsidered in the future. This is mainly because the High Court held that UNISON’s arguments on the impact of fees could not be decided upon as it was too early to judge the full impact of the fee regime.

Relevant factors that were considered in the rejection of the challenge to fees in principle included the means tested fee remissions, the expectation that claimants would recover fees if successful at Tribunal and the introduction of early conciliation via ACAS.

UNISON had also argued that the introduction of the fees was a breach of the Public Sector Equality Duty, which requires public authorities not just to promote equality of opportunity but to advance it. The High Court noted that this duty is a continuing one and warned that, if the introduction of fees has a damaging effect on this fundamental obligation, the Lord Chancellor will have to take steps to rectify this by adjusting the fees regime.

The final challenge was to the different fees for simpler Type A claims and more complex Type B claims. UNISON argued that the higher fee for Type B claims was indirectly discriminatory as it would have a disparate impact on women. The High Court accepted the general proposition that generally women earn less than men but was unable to reach a conclusion as to whether this could be objectively justified. The High Court has decided to “hold the Lord Chancellor to account should his optimism as to the fairness of this (fee) regime prove unfounded”.

UNISON has already vowed to continue fighting following the ruling. Given the comments of the Court on waiting to see the true impact of the regime, this is hardly surprising.

There would appear to have been a significant drop in the number of claims issued since the fee regime commenced in July last year. However, there are many claims still to be processed from the fee remissions process and we are yet to see the full impact of the introduction of fees.

The UNISON case did place enough pressure on the Government to concede that it expects successful claimants to recover the fees from the employer. This may well provide some comfort for claimants intending to issue claims and it may also lead to an increase in firms offering to cover Tribunal fees upfront, and therefore increase claims. Just like UNISON and the Lord Chancellor, we shall have to wait and see.

For further information, please contact Eleanor Wilkinson, associate in the employment team at Square One Law on 0843 224 7940

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