When Employment
Tribunal fees were first introduced, Unison attempted to challenge their
legality; however their attempt was rejected as being too premature. Unison
recently re-presented their legal challenge when the significant reduction in
the number of Employment Tribunal claims, which had followed the introduction
of fees, became evident. These challenges have all now been considered together
by the Court of Appeal
Unison argued that
the tribunal fees were set at such a level, and the remission criteria were so
restricted, that many claimants would be unable to afford to bring a claim in
the tribunals. However, the Court of
Appeal dismissed Unison’s appeals.
In his judgment, Underhill
LJ commented that such a large decline in the number of tribunal claims being
brought could not consist entirely of cases of potential claimants that “won’t
pay” and that it must also reflect some cases of claimants that “can’t
pay”. However, he went on to state that “the
case based on the overall decline in claims [could not] succeed by itself.” He
said that: “It [needed] to be accompanied by evidence of the actual
affordability of the fees in the financial circumstances of (typical)
individuals”.
Underhill LJ also
held that provision for the consideration of “exceptional circumstances” within
the remission regime meant that it could not be said that the fee system was so
unaffordable as to mean there was no effective remedy under European Union law.
He then went on to dismiss Unison’s
arguments based on indirect discrimination and the public sector equality duty.
The current fee
arrangements for Employment Tribunal claims have undoubtedly contributed to a
significant reduction in claims. The failure of this challenge means that fees
are likely to be here to stay. The Court of Appeal’s Judgment observes, if the
impact of fees is to make potential claimants think twice about starting
proceedings that is “not …a bad thing”.
This Judgment
leaves open the possibility that further challenges to the legality of fees may
be brought based upon individual cases where actual claimants are unable to
afford to claim. Unison has also
said that it will seek permission to appeal to the Supreme Court. We will have to wait and see whether the
Judgment influences the current governmental review of the fee regime.
