Unison has now had two attempts to have the requirement for claimants to pay fees in the tribunal system struck out. Currently for a claimant who does not qualify for remission to claim unfair dismissal they have to pay £250 to issue their claim and then £950 to have a hearing. If they are seeking to recoup unpaid wages they have to pay £160 to issue the claim and £230 for a hearing, often more than the wages they are claiming!
The first attempt by Unison failed because it was said there was not enough actual evidence at that time to demonstrate a real drop in claim numbers. However since then, as most employment lawyers are aware, the claim numbers have remained low and tribunals quiet with no more overcrowded waiting rooms! It was therefore not unreasonable to think that Unison’s second attempt would be successful; it now had the statistics to prove the argument.
Unfortunately (or fortunately depending on your view point) this second challenge has also been dismissed by the courts.
Although the court had to acknowledge that there clearly has been a reduction in claim numbers, it was not persuaded that the drop was due to an inability of claimants to pay. Claimants may not be deterred from making a claim because they cannot afford to pay the fees; they may instead not be making claims because they are unwilling to spend their money on the fees. The court could not test the fairness of the fee system without looking at the income and expenditure of actual individuals to see if the fees did indeed make it "virtually impossible or excessively difficult" for them to bring claims.
The court also did not accept that the fees regime was indirectly discriminatory against women. The most recent statistics now demonstrate that the proportions of claimants paying the higher fees (for claims such as unfair dismissal) are broadly in line with the balance of the sexes in the work place, just over 50% for men and just under 50% for women.
The court was of the view that even if indirect discrimination against women could be proven it could be justified because of the following legitimate aims:
- users of the tribunal system who can afford to pay should contribute towards its running costs in exchange for the benefit they receive from the system
- to improve efficiency by discouraging unmeritorious claims
- to promote alternative methods of dispute resolution
As a result the court was not persuaded that cost-saving was the only aim of the fee system.
Higher fees for the more complicated claims, unfair dismissals as opposed to deductions of wage for example, can also be viewed as legitimate because such claims invariably take more time for the tribunal to sort, both administratively and at hearing.
As things presently stand the courts have decided that tribunal fees, when taken as a whole to include the option of certain claimants being able to apply for remission, is proportionate and here to stay. Here to stay for now that is as Unison will be appealing this to the Court of Appeal.