The trade union Unison has lost its third challenge of the legality of the introduction of fees in the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT). The fees for bringing employment claims came into force on 29th July 2013. Under this fee regime, depending on which employment legislation has allegedly been breached, claimants have to pay £160 or £250 to bring a claim, with a further hearing fee of either £230 or £950 if the case goes ahead.
On 1st July 2013, Unison commenced judicial review proceedings challenging the introduction of the fees. Their case was that the fees were set at such a level and the remission criteria were so restricted, that many claimants would be left unable to afford to bring an ET claim. The court held that the fee challenge was premature as there wasn’t any evidence on the impact of the introduction of the fees.
Unison brought further proceedings on 23rd September 2014 on similar grounds. It relied on statistics that indicated that between April and June 2013, before the fees were introduced, 44,334 claims were brought to the ET. After the fees were introduced, just 8,540 claims were brought in 2014, which represented a drop of 35,794 claims or a staggering 81%. The fee challenge failed as Unison was unable to show that anyone had ever been unable to bring an ET claim because they could not afford it.
Quashing Unison’s third attempt to challenge the fee regime, Lord Justice Underhill said that whilst he was concerned by the evidence of drop in cases, “the case based on the overall decline in claims cannot succeed by itself”. He continued that in order for the Court of Appeal to reach a reliable conclusion that the fee regime would be considered to be realistically unaffordable in some cases and there should be clear evidence of the same in the financial circumstances of “typical” individuals. The existence of the fee remission regime allows such individuals’ access to justice and therefore the fee regime is not generally so unaffordable that it meant that there was no effective remedy under European Union law.
LJ Underhill’s legal reasoning and stance was neither without merit nor entirely unexpected. The government has recently launched a consultation on the very same fee regime (see our article here) and allowing the appeal may perhaps have thrown an unnecessary spanner in the legislative machine. In any event, this will not be the last we hear about this.
Unison has stated that they will seek permission to appeal to the Supreme Court and The Association of Recruitment Consultants, who was closely involved in the consultation leading to the introduction of the fee regime, is launching a campaign in readiness for the new government consultation.