Eversheds partner comments on unsuccessful challenge to UK employment tribunal fees

Geoffrey Mead, partner at Eversheds, has commented on UNISON’s unsuccessful challenge to the UK employment tribunal and Employment Appeal Tribunal (EAT) fees regime.

Judicial review proceedings were brought by UNISON on the basis of an argument, in summary, that the fees are ‘unjust and discriminatory’.

Mead said: ‘In judicial review proceedings, a judge reviews the lawfulness of a decision or action made by a public body. UNISON sought a quashing order, to set aside the fees order. The union argued, in summary, that the fees regime was indirectly discriminatory and unlawful. The government argued, in its defence, that its remission agreements “should negate or substantially reduce the impact on the claimants with limited financial means, by wholly exempting or providing them with discounts on a sliding scale”.

‘UNISON’s failed challenge means that the fees regime is not unlawful and will continue in its current form. The government will doubtless breathe a huge sigh of relief, given that it had already pledged, in the context of Scottish judicial review proceedings, that any fees previously paid would be reimbursed if the challenge were successful.’

According to Mead, UNISON has already indicated that it will be appealing against the High Court’s decision to the Court of Appeal. He continued: ‘Further, the judgment does not rule out the possibility of future challenge. These proceedings were brought as a matter of urgency. The court noted that the evidence it had before it was insufficient, based on predictions only. The court noted that it would be better to wait and see and hold the Lord Chancellor to account given his duty to take remedial measures if the fees regime does, in the fullness of time, have a discriminatory impact. There are also further judicial review proceedings pending in Scotland.

‘Few employers will be sorry that the fees regime will remain, for the time being at least, as the reality for them is fewer employment tribunal claims. It is becoming clear that, by introducing fees, the government has made significant inroads into one of the perceived weaknesses of the system, namely that it allowed weak and unmeritorious claims to proceed with impunity. Although preventing such claims was not one of the government’s stated aims in introducing fees, the regime will continue to be welcomed by most employers if the number of claims they perceive as weak and unmeritorious is reduced.’