Fees were introduced for the first time in the Employment Tribunal from July last year. Individuals bringing claims have to pay an issue fee and a hearing fee. These fall into two categories: type A (for theoretically more straightforward claims such as unlawful deductions from wages or claims for holiday pay); and type B (for more complex cases, such as unfair dismissal or discrimination claims). In a type B case, the total amount payable by a claimant to issue a claim and have a hearing is £1,200.
Unison applied for Judicial Review of the fee regime, on the basis that this breached European law and adversely affected minority groups. The High Court has rejected Unison's application, acknowledging that while proceedings will be expensive, there will be a remission scheme for Claimants in financial difficulty, so it will not be so difficult to bring a claim that European provisions about effective remedies would be breached. However, in a concession to the union, the Court said that a "wait and see" approach should be adopted so that the issue could be revisited if the union's fears about the impact of fees proved well founded.
The Court also said that insufficient evidence was available to show that minority groups would be disadvantaged by having to pay a fee. Again, this leaves the door open to a further challenge if and when such evidence becomes available.
The employment tribunal system has long worked on the premise of access to justice for the most vulnerable, i.e. those who have lost their jobs or been treated unfairly at work. When the fees regime was first mooted, some commentators were surprised by both the theory and level of proposed fees, which went against this long standing principle. In its decision, the High Court has left plenty of scope for fees to be challenged again in the near future and has helpfully pointed potential claimants (such as a large trade union) towards the sort of evidence they will need to gather to support their case. In the meantime, Unison has announced its intention to appeal to the Court of Appeal. The only certainty, therefore, is that we have not heard the last of this challenge.