Tribunal Fees Lawful Rules Court of Appeal
The Court of Appeal has rejected Unison’s attempt to have employment tribunal fees declared unlawful.
The Court of Appeal has dismissed Unison’s challenge to the introduction of employment tribunal fees. It rejected arguments that fees prevent claimants from having access to justice and that they are indirectly discriminatory on grounds of sex. Unison has applied for permission to appeal to the Supreme Court.
In R (Unison) v Lord Chancellor, Unison argued that employment tribunal fees, introduced in July 2013, prevent claimants from having access to justice. In support of this, it relied on the significant drop in tribunal claim numbers since their introduction. It also argued that the fees regime indirectly discriminates against women as they bring more discrimination claims and are therefore disproportionately affected by the higher fees for bringing discrimination claims.
The Court of Appeal ruled that fees do not act as a barrier to justice. Although the statistics showing a decline in claim numbers did suggest that some people were “unable” to pay, as opposed to merely being “unwilling” to do so, the figures on their own could not constitute a safe basis for concluding that fees are unlawful. In any event, the Lord Chancellor retains discretion to grant remission for claimants who do not meet the remission criteria, but who are in exceptional circumstances. This means that the fees regime does not inherently result in claimants being unable to bring proceedings.
The fees regime does not indirectly discriminate against women. Even if women are disproportionately affected by higher fees, this could be objectively justified. The level of fees set for each type of claim corresponds to the level of resources required by the tribunal to deal with it. This was not a case of seeking to justify on the basis of cost alone. It was simply the application of the principle of economic efficiency.
Unison has applied for permission to appeal to the Supreme Court.
It seems that tribunal fees are with us to stay, at least in England and Wales. The Scottish Government has just announced its intention to abolish employment tribunal fees in Scotland. In the meantime, the House of Commons Select Committee has launched an inquiry into tribunal fees and the Ministry of Justice is carrying out an internal review.
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