In October 2014, we reported that the second judicial review application brought by the trade union, Unison, had been granted. The application challenged the employment tribunal fees regime introduced in July 2013.
This morning (17th December), the High Court handed down its judgment. The challenge was unsuccessful. Unison has said it will be appealing the decision to the Court of Appeal.
The fees regime was challenged on two grounds:
- It was argued that the cost of litigation (including the costs of legal representation and court fees) denied claimants an effective remedy so as to be virtually impossible or exceptionally difficult for potential applicants to bring a claim.
The extent of case law was limited and whilst Unison provided notional and statistical evidence demonstrating a substantial fall in claims, it was unable to provide actual evidence for the court to consider whether any potential claimants were unable or unwilling to proceed with a claim because of costs.
- Indirect discrimination – higher tribunal fees are required for certain claims (including those involving discrimination and equal pay). It was therefore said that the fees regime had a disproportionate impact on women, low-paid, disabled people and ethnic minorities.
The High Court found that a difference in fee could be justified by the level of service or resources required.
Overall, the scheme was said to be justified on the basis that those who used the employment tribunal system contributed to its running, made the system more efficient, and encouraged settlement.
Whilst employers and business groups welcomed tribunal fees as a way of protecting employers from frivolous claims, the most recent quarterly figures for July to September 2014 continue to show a decline in claims being pursued – 66% fewer than the number of claims lodged in the same period of 2013, according to the Ministry of Justice.
The continued fall is likely to be sustained, at least until after the general election in May 2015 when there is likely to be a review – regardless of which political party is in government.
The full judgment of the High Court can be read here.