Tribunal fees update – Unison loses Court of Appeal case

4 September, 2015

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.