Unison’s latest challenge to the legality of employment tribunal fees has been dismissed by the Court of Appeal.
The introduction of fees was possibly the most controversial change to the tribunal system since its inception. Praised by some as a means of weeding out unmeritorious claims, it was condemned by others as a restriction on access to justice, which left many employees unable to exercise their employment rights leaving them limited redress against the actions of unscrupulous employers.
Under the new rules workers are charged an “issue fee” when a tribunal claim is issued and a “hearing fee” which is payable before the case is heard.
Unison initially challenged the fees regime on four key grounds:
1. Procedural requirements must not make it virtually impossible or excessively difficult to exercise rights conferred by EU law. Many employment rights, particularly discrimination, derive from EU law. UNISON argued that the existence of fees make it excessively difficult to exercise these EU derived rights.
2. Domestic rules governing the exercise of rights derived from EU law must not be less favourable than those governing similar rights which are not derived from EU law. Many more employment rights derive from EU legislation than rights exercised in the County and High Courts. UNISON argued that when compared to the costs of small claims brought in the County Court, the levels at which fees are set for Employment Tribunals are less favourable and therefore unlawful.
3. The Public Sector Equality Duty requires those making laws to have due regard to the need to eliminate discrimination. UNISON argued that this duty was not complied with.
4. It is unlawful to have a provision which puts people sharing a particular characteristic at a disadvantage, subject to the possibility of objectively justifying that provision. UNISON argued that as discrimination claims are classified as the more expensive Type B claim, that having a higher rate of fees in these cases has a higher impact on minority groups, such as women, ethnic minorities and the disabled and was therefore unlawful.
Their challenge initially failed on the basis that it was simply too early to know the impact of the new regime and the High Court proposed adopting a “wait and see” approach.
Whilst this latest failure at the Court of Appeal means that for the moment the fee regime is here to stay Unison has said that it will seek permission to appeal to the Supreme Court.
The government has also announced its plans to review the impact of the introduction of Employment Tribunal Fees. The review will consider how effective the introduction of fees has been at meeting its objectives and maintaining access to justice.
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