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7 February 2014

Challenge to tribunal fees fails

The judicial review application by UNISON to challenge the introduction of the fee regime in employment tribunals has failed.  Our employment team reports on the High Court decision.

Following the introduction of a new fee regime in the employment tribunals from 29 July 2013, the UNISON trade union issued an application for judicial review of the Government’s decision.

UNISON claimed that the introduction of fees would make it excessively difficult for individuals to exercise rights that were conferred under EU law, that it breached the public sector equality duty and that it would have a disproportionate (and therefore indirectly discriminatory) effect on certain groups, including women.

The High Court has today dismissed the application for judicial review.

  • It held that even families on very modest means would have sufficient opportunity to accumulate the funds necessary to pay the fees, particularly given the timescales for payment of fees and the operation of the fee remission scheme.
  • The Court was also satisfied that the availability of free Acas conciliation (mandatory from 6 April 2014), and the fact that successful claimants could recover the fees, meant that the access to justice in respect of EU-derived rights satisfied the test of  ‘equivalence’ to that applying to domestic rights.
  • The Court was referred to tribunal statistics showing a dramatic fall in the number of claims by September 2013.  A key factor in its decision was that the period from the introduction of fees in July 2013 to September 2013 was too short in order to properly ascertain the effect of fees on the number of claims, and therefore to decide whether there was any breach of the public sector equality duty and whether there was any indirect discrimination.

In effect, the Court has suggested that the Judicial Review application by UNISON was premature, and that more time needs to elapse in order to ascertain the full impact of the introduction of fees.  The judgment also refers to the Government’s ongoing obligation to assess the impact of the fee regime on the basis of evidence revealed in practice, in order to comply with its public sector equality duty.

This means that the door has effectively been left open for a further possible challenge in the future.  In the meantime, UNISON has confirmed that it will be appealing the Court’s decision.

A copy of the High Court judgment is available here.

The UNISON press release is available here.