Last year, unsuccessful judicial review proceedings were brought by UNISON to challenge the introduction of employment tribunal fees. UNISON was seeking to quash the fees regime on the basis that it is “unjust and discriminatory” and prevents many whose rights have been infringed from obtaining redress. However, the challenge failed, largely because the High Court considered it too soon to assess the impact of fees: the hearing took place back in early Autumn, only a matter of weeks after fees were introduced.

UNISON appealed to the Court of Appeal against the High Court’s decision. At the Court of Appeal, it was agreed that the best way forward would be for UNISON to bring fresh judicial review proceedings at which they would be able to rely on the claims statistics produced over the last 12 months. Those fresh proceedings will take place today and tomorrow. In particular, UNISON may seek to argue that recent statistics reveal a substantial and sustained drop in claims derived from EU rights, particularly discrimination rights, which supports their claim that the fees regime:

  • breaches the EU principle of effectiveness by making it virtually impossible or excessively difficult to enforce employment rights deriving from EU law; and
  • is indirectly discriminatory, in that fees may put certain protected groups at a particular disadvantage and may not be proportionate.

Interested in further information?

A representative from Eversheds is attending the judicial review proceedings. If you would like to be amongst the first to receive further information about the proceedings, the arguments presented or the court’s observations, please contact HRGroup@eversheds.com.

Comment 

Many consider that UNISON’s prospects of success this time around are higher than they were previously, as the statistics now produced show a very significant and sustained reduction in the number of claims since fees were introduced. In particular, there have been approximately 90% fewer sex discrimination complaints and 75% fewer equal pay complaints in a year on year comparison. You can read our e-brief on the latest statistics here.

The High Court’s decision, which could be handed down later this year, may not be the final word on the matter. There could be further appeals from that decision, with the existing appeal also being revived. There are also judicial review proceedings in Scotland which have been stayed pending the outcome of this challenge. However, even if UNISON meets with success in their claim, it seems most likely that the outcome would be a reduction in the fees payable, rather than a wholesale repeal.