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Tribunal fees challenge rejected…but it might not be the end of the matter…

Since July 2013, claimants have had to pay an ‘issue fee’ to bring an employment tribunal claim, and a ‘hearing fee’ in advance of a final hearing. Depending on their financial circumstances, individuals may be able to claim remission of all or part of these fees.

Unison brought a judicial review challenging the introduction of fees. The High Court today rejected Unison’s application. For now, therefore, the fee regime remains.

But it may not be the end of the matter…

The High Court found that fees did not make it ‘virtually impossible, or excessively difficult’ for claimants to exercise their rights. Whilst they impose a burden on families with very limited means, who may have to use hard-earned savings to fund tribunal litigation, the fees were still affordable.

This conclusion was, however, based on evidence about hypothetical claimants. The Court stressed that, at this stage, it had insufficient actual evidence to judge the fees regime. The Court suspected that fees will have a disparate impact on, for example, women, ethnic minorities and the disabled, but it was not yet possible to gauge the extent of that impact.

The Court encouraged the Equality and Human Rights Commission to maintain accurate figures and evidence on the regime’s impact. If it transpires that fees are having a damaging effect on the obligation to eliminate discrimination and advance equality, the government will have to adjust the regime.

Impact on number of claims

Unison led evidence that there has been a dramatic fall in claims since the introduction of fees. The government argued that it was too early to rely on the accuracy of these statistics.

Conduct of tribunal litigation

The High Court noted that it would expect tribunal witness statements and documents to be exchanged before hearing fees become due, so claimants have material on which they can assess their prospects of success.

Reimbursement of fees by losing employers

Employment judges currently have discretion to order losing employers to reimburse the fees paid by successful claimants. The High Court noted that consideration is being given to amending this so the general position will be that if a claimant is successful, the respondent will be ordered to reimburse the fees.

Scotland challenge

A similar challenge to tribunal fees in Scotland was ‘paused’ pending the outcome of the Unison case. We will report on any developments in this case.

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