UNISON has confirmed that is making an application to the High Court to challenge the introduction of fees in the employment tribunal system. This is a judicial review of the Ministry of Justice’s decision to introduce employment tribunal and Employment Appeal Tribunal fees from 29 July 2013. UNISON argues that these charges will make it ‘virtually impossible’ for workers to exercise their employment rights.
Fees start at £160 to issue a claim, rising to £250 a claim depending on the type of claim, with a further hearing fee starting at £230. For an unfair dismissal claim the hearing fee is to be £950.
In a press release, UNISON explain that they wrote to the Ministry of Justice on 1 June 2013 stating that it would lodge proceedings if the introduction of fees went ahead. The union has now outlined the legal arguments it intends to put to the Court:
- Introducing fees will prevent people exercising their EU rights. UNISON envisages that reasonable people will not litigate to vindicate their EU rights given that the new fee regime will impose fees which will often be greater than the expected compensation, even if the claims are successful. UNISON considers that the fees are set at a prohibitive level even to those entitled to partial remission of their fees. In its view, this breaches EU law, which requires national courts not to make it excessively difficult for individuals to exercise their EU rights
- Introducing fees breaches the EU principle of equivalence. UNISON states that fees are not payable in most First-Tier Tribunal claims, a similar tribunal at the equivalent level in the judicial hierarchy to the employment tribunal. It therefore argues that it is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU employment rights.
- Charging fees amounts to indirect discrimination because they will have a disproportionate adverse impact on women. Given that women will not (if they earn an average income) be entitled to any remission of fees in a tribunal, UNISON states that it is difficult to see how that impact could be said to be a proportionate means of achieving a legitimate aim
- There has been no proper assessment of the Public Sector Equality Duty. Although the Government did undertake an Equality Impact Assessment. UNISON argues that a proper assessment would have considered the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics that would previously have been brought and that will now not be pursued.
During the consultation over charging fees, the Government stated that it did not accept that the introduction of fees would be unlawful under EU legislation. It also rejected the notion that its approach will lead to direct or indirect discrimination, and took the view that ‘access to justice is protected via the remissions system’ which will apply across the fee structure.