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Employment Tribunal Fees: Here to Stay?

What are employment tribunal fees?

Since July 2013, claimants have had to pay fees to bring an employment tribunal claim, although some will be entitled to full or partial fee remission on account of their financial circumstances.

Impact of fees?

Since the introduction of fees, there has been a dramatic fall in the number of employment tribunal claims: approximately an 80% drop in all claims, and a 64% drop in claims by individuals.

Legal challenge

Unison brought a judicial review challenging the introduction of fees, arguing that the level of fees and restricted remission Scales of Justice in the Courtroomcriteria meant that many claimants would be unable to afford to bring a claim and, as such, would effectively be denied access to justice if their employment rights were breached. Unison’s challenge was rejected by the High Court in December 2014. Unison appealed to the Court of Appeal.

Outcome of appeal

The Court of Appeal rejected Unison’s case. It was ‘troubled’ by the drop in employment tribunal claims but found that whilst the statistics demonstrated that fees had had a marked effect on the willingness of workers to bring claims, they did not prove that any individual had been unable to do so. It said that, in order to prove its case, Unison would need evidence that fees were unaffordable in the cases of some typical individuals, and it had not led any such evidence. The Court of Appeal also rejected Unison’s other arguments, including that fees are indirectly discriminatory.

So are fees here to stay?

For now yes; but the position is not settled:

  1. Unison is seeking permission to appeal to the Supreme Court;
  2. The judgment leaves open the possibility of a further challenge to the legality of fees based on evidence that actual (or notional) individual claimants cannot afford to bring a claim;
  3. A similar challenge to tribunal fees in Scotland was ‘paused’ pending the outcome of the Unison case – it may ultimately be restarted;
  4. The government is currently reviewing tribunal fees, as discussed in our previous blog. Commenting on this review in its decision, the Court of Appeal noted that the decline in the number of tribunal claims means that there should be a very full and careful analysis of its causes, and that if it stems from the fact that individuals cannot afford to bring claims then the level of fees and / or the criteria for remission must be revisited; and
  5. The Scotland Bill provides for power over the management and operation of employment tribunals to be devolved to the Scottish Parliament, and it has been commented that this may ultimately result in a different approach to employment tribunal fees in Scotland.Kathleen Morrison Brodies LLP

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