There have been a number of challenges to employment tribunal fees since their introduction in July 2013. A second challenge in the divisional courts was heard in the High Court in England this week. The claim that the fee regime is unfair was once again dismissed, meaning that the fee regime will remain in place. However there were strong indications in the judgment that the judge expected the decision to be appealed and the fee regime to be challenged again in a higher court.
The challenge again came from UNISON. They made their claim on two grounds:
- Fees are unlawful because they infringe the EU principle of effectiveness. This is because the cost of going to the employment tribunal is said to be such that it is virtually impossible (or at least exceptionally difficult) for a significant number of potential applicants to afford to bring a claim.
- Secondly UNISON claimed that the fee scheme indirectly discriminates against women, ethnic minorities and the disabled. As you may be aware, discrimination cases cost more to bring to an employment tribunal. Stats show that women are far more likely to raise a discrimination claim than men, and therefore the fee regime indirectly discriminates against women. UNISON claimed that the same applied to all people likely to bring a claim for discrimination.
The reasons of dismissal of the appeal
UNISON relied heavily on statistics showing the dramatic drop in tribunal hearings. The stats provided from the Tribunals Statistics Quarterly showed a 79% drop for the same period in the previous year. The judge however was not persuaded by the claimant’s reliance on these statistics. He stated that there could be a number of other reasons for the drop, for example changing the qualification period for an employee to be eligible for unfair dismissal from one year to two years or further encouragement via ACAS to settle. He was further not swayed that it was clear in practice that the fee regime made it impossible or exceptionally difficult to bring a claim to the tribunal. He stated that if an employee really wanted to bring a claim then he had 3 months to arrange his funding for it.
With regard to the discriminatory claims, the judge held that the fact that discrimination cases took up more of an employment tribunal’s time was fair reason for the claimant to pay more to be heard. He further stated that the regime was not intended to break up potential claimants into subgroups, but rather apply to all claimants as one.
The future for fees?
Employers should be warned that this ruling definitely does not draw a line under matters. The judge made a number of references in his judgment suggesting that he expects to see more challenges to employment tribunal fees in the future. It was stated that the fee regime had not yet been running long enough to enable the claimants to prove that it was disproportionately unfair. With reference to the statistics, it was stated that if a claimant could show that he personally found it impossible to pay such fees, then he might have more of a chance of a successful claim. Furthermore UNISON have confirmed that they intend to appeal this decision and leave to appeal has already been granted.
For now, the battle for employers has been won, but the war is most definitely not over.