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UNISON applies for judicial review of employment tribunal fees

Out-Law News | 25 Jun 2013 | 9:52 am | 3 min. read

UNISON has applied to the High Court for a judicial review of the Ministry of Justice's decision to introduce employment tribunal fees from the end of next month, it has announced.

The trade union's general secretary, Dave Prentis, said that the introduction of fees would disproportionately affect women and others with 'protected characteristics' under equality legislation. Bringing in tribunal fees would also go against EU law by making it "virtually impossible" for workers to exercise their rights under employment law, he said.

Employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that although some of UNISON's arguments were plausible, many of them were "not strictly accurate". In addition, the union would have "a high bar to reach" if it planned to prove that the Government had acted unreasonably in proposing the introduction of fees, he said.

"In order for a judicial review to be successful, UNISON would have to show that the Government had acted in a way that no reasonable government could act by implementing the scheme in that way," he said. "It is not a question of whether the court agrees with the Government's decision."

"When considered against the wider backdrop of the further cuts to public spending due to be announced this week as part of the Chancellor's Spending Review, is it unreasonable for the Government to want to save money and create what it will argue is a more efficient system, with those with less meritorious claims discouraged from bringing them? This is what will have to be proved to the court. The Government is also likely to argue that the fee remission scheme is designed to strike a balance between maintaining access to justice and sharing the cost of the system," he said.

New fees for bringing a claim to an employment tribunal or the Employment Appeal Tribunal (EAT) are due to come into force from 29 July. Under the new structure, parties will have to pay an upfront fee to raise a claim with a further 'hearing fee' once the case is referred to a tribunal. Flat fees will apply to EAT cases.

The amount payable to refer 'level 2' unfair dismissal or discrimination claims will be £250 with a further hearing fee of £950, making a total of £1,200. A full hearing for an administratively simple 'level 1' claim will be £390. The remission system which currently operates to exempt people on low incomes from having to pay the full fees will be extended to apply to employment tribunals.

A consultation closed last month on changes to the fee remission scheme. The Government is proposing to introduce a single remission scheme across the variety of UK civil courts and tribunals, to replace the variety of schemes currently in operation. The consultation proposed a new test which would look at a combination of workers' income and capital savings to decide whether they would be entitled to the payment of some or all of their fees.

The first legal argument proposed by UNISON against the introduction of fees is based on EU law. EU law prevents national courts from making it "virtually impossible, or excessively difficult" for individuals to exercise their rights. In a statement, UNISON said that a "reasonable person" considering litigation will weigh the likely costs of proceedings against the benefits. The new regime would "impose fees which will often be greater than the expected compensation", assuming the claim was successful, UNISON said.

UNISON said that when the Government carried out its impact assessment on fees, it did not properly consider the potential adverse effect of introducing fees on public sector workers with protected characteristics, as required by the Public Sector Equality Duty. It also referred to the number of women currently pursuing equal pay claims through UNISON to show that the introduction of fees would be indirectly discriminatory, as they would have a disproportionate adverse impact on women.

The introduction of fees in the employment tribunal would also breach the "principle of equivalence", UNISON said. Fees are not payable in most claims brought to the First-Tier Tribunal, which operates at an equivalent level to the employment tribunal in the judicial hierarchy, UNISON said.

"The Government should not put a price on justice – that is why UNISON is calling for a Judicial Review," UNISON's Dave Prentis said. "These charges are a blatant attempt to stop working people from exercising their employment rights. It will give unscrupulous employers the green light to ride roughshod over employees' already very basic rights at work."

"The Government like to talk about equality but these changes will hit women in particular hard. We do not have class actions in this country and over the years UNISON has lodged equal pay claims for hundreds and thousands of women. If those women did not have union backing, and had to pay up front for access to justice, many would have lost out," he said.