The High Court has dismissed a second judicial review application by Unison challenging the introduction of employment tribunal fees. This means that, for now, employees will still have to pay a fee to bring a claim against their employer. It appears, however, that permission to appeal has been given. This issue is also riding high in the political arena with the Labour party indicating that, if it is elected in 2015, it has plans to reform the system. Fees therefore remain a hot topic and future developments seem likely.
Employment tribunal fees were introduced for the first time in July 2013. Claimant employees who do not qualify for fee remission (which is only available in very limited circumstances) must now pay an issue fee to bring their claim (ranging from £160 – £250), and a hearing fee to have their case heard (ranging from £230 – £950). This has had a dramatic impact in terms of the number of claims being brought. The latest employment tribunal statistics for the period July – September 2014 show a 61% drop in the number of single claims compared to the same quarter in 2013.
In February 2014, the High Court rejected Unison’s first judicial review application on the grounds that it was premature and that insufficient evidence was available to challenge the introduction of fees. In September 2014, following the publication of statistics which demonstrated a significant reduction in the number of claims being brought, the High Court granted permission for a second judicial review. This was heard on 21 and 22 October 2014 and judgment was handed down today, 17 December 2014.
The High Court has, however, again rejected the application. This time round, Unison had relied on two grounds of challenge. The first was the EU principle of effectiveness. This is based on a premise that costs cannot be such that it is virtually impossible or at least exceptionally difficult for a significant number of potential claimants to bring a claim. Secondly, Unison argued that the fee scheme operated in an indirectly discriminatory way with respect to women, ethnic minorities and the disabled and that that was not justified.
On the first ground, despite finding that the “reduction in the number of cases brought is striking”, the court was unwilling to find that there had been a breach of EU law. It said that there was “no evidence at all that any individual has even asserted that he or she has been unable to bring a claim because of cost”. In its view, the court could only test the argument if there are actual cases which will enable the court to review the principle of effectiveness in concrete situations.
In relation to Unison’s second argument, the court said that Unison’s case had focussed almost exclusively on discrimination against women and so it would only consider issues of sex discrimination. It said, however, that if the sex discrimination claim did not succeed it was unlikely that a claim based on any other protected characteristic would do so. The court held that the fee scheme was seeking to achieve three distinct objectives: to transfer some of the annual cost of running employment tribunals to the users who benefit from it and can afford it; to make tribunals more efficient and effective, not least by removing unmeritorious claims; and to encourage alternative methods of employment dispute resolution. The court found that each of these objectives is legitimate and that the scheme, taken overall, was justified and proportionate to any discriminatory effect. It was therefore not indirectly discriminatory.
Unison has announced that it has been given permission to appeal the High Court’s decision and that it intends to do so. For now, it seems likely that the number of claims brought by employees against employers will continue to fall well short of the numbers which were brought pre-fees. This is likely to be welcome news for employers. However, it does continue to raise questions in respect of access to justice for those employees who do have meritorious claims. It remains to be seen whether, on appeal, Unison will be able to persuade the court to find differently. In the meantime, it may be beaten to the post by the general election. If there is a change in the political landscape reforms to the fees system seem likely in any event.