The High Court has rejected UNISON’s application to judicially review the imposition of fees in GB employment tribunals. The Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 brought in fees for claimants issuing tribunal claims and fees for those cases that proceed to hearing. Fees apply to two types of claims – A and B. Type A claims attract a smaller fee and involve simpler claims. Type B claims attract higher fees and include more complex issues, such as unfair dismissal and discrimination claims. The union sought to have the fees regime declared unlawful and discriminatory.

Although the union lost, the High Court has not closed the door on future challenges being successful, particularly in relation to the higher Type B fees. In relation to the argument that fees could be indirectly discriminatory it said:

“...we do not find it possible to reach a conclusion as to whether the imposition of a higher rate of fees for Type B claims can be objectively justified if it has an indiscriminate effect. We repeat that we suspect that the imposition of this fee regime will have a disparate effect on those within the protected classes, but that it is not possible as yet to gauge the extent of the impact. For that reason, it is not possible, and would be wrong for this court, to reach a conclusion as to objective justification, dependent as that exercise is upon weighing the extent of the disparate impact.”

Before dismissing the application, the Court noted:

“We would underline the obvious: there is no rule that forbids the introduction of a fee regime. The nature of that regime is closely dependent upon economic and social considerations and policy. The formation of such policies is itself dependent upon an accurate assessment of income and expenditure and the means of those who wish to use the Tribunal system, and in the light of the need to encourage challenges to discrimination in pursuit of the important goal of equality. This cou rt did not find itself in any position accurately to collate the information, still less the evidence, in order to achieve a just resolution.” http://bit.ly/1gl5wUn

Practical lessons from this decision

The NI Minister for Employment and Learning has already indicated that fees will not be introduced in Northern Ireland. In relation to GB tribunals, there has been a reported 80% drop in the number of tribunal claims since fees were introduced. It is difficult to believe that 80% of claims are misconstrued or vexatious etc and it would not be a surprise if, armed with statistical evidence, another challenge to the GB fees regime is lodged.