The High Court has dismissed Unison's application for judicial review of the introduction of Tribunal fees in England.  However, the Court emphasised that the position is subject to review once the impact on the fees regime becomes clearer.  Unison has announced its intention to appeal to the Court of Appeal.  The application for judicial review in Scotland, which was stayed pending the decision of the English High Court, has yet to be determined. 

There are a couple of practical points arising from the decision that employers should note:

  • Case management timetable: the Court expressed the view that Tribunals would be likely to encourage a full exchange of information before a hearing fee is due, so that the Claimant can consider his/her likelihood of success.  This may lead to Tribunals setting earlier case management deadlines to ensure that witness statements are exchanged before claimants are required to pay the hearing fee.
  • Employer to pay Tribunal fees where Claimant is successful: During the course of the Judicial Review proceedings, the Ministry of Justice amended its Guidance to Claimants stating that the general position is that the Respondent will be required to reimburse the Claimant where he/she is successful in his/her claim.  While consideration is being given to amend the Tribunal Rules to reflect this change, employers should note that it seems reasonably clear that this will be the expectation going forwards.