UNISON’s challenge to ET and EAT fees dismissed by High Court

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Employment Up-to-Date — February 2014: UNISON’s challenge to ET and EAT fees dismissed by High Court - .PDF file.

The High Court has dismissed the challenge to the recently imposed fees regime in the Employment Tribunal (ET) system, brought by the trade union UNISON. However the dismissal of two of the grounds was attributed to an absence of robust data, rather than the merits of the contentions. In dealing with those issues (that fees make it ‘virtually impossible’ to exercise rights conferred by EU law and that fees are indirectly discriminatory), the court clearly stated that a ‘wait-and-see’ approach is required to allow the body of evidence to develop. Should future data support either contention, the Lord Chancellor will be expected to alter the system accordingly. UNISON has confirmed that it intends to appeal (R (on the Application of UNISON) v The Lord Chancellor and another).

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) effectively ended more than 40 years of mostly free access, for both employer and employee, to a court giving effect to employment rights law. Fees are now payable by the claimant, first on presenting the claim (the ‘issue fee’) and later on listing for hearing (the ‘hearing fee’). These sums are not inconsiderable: a ‘Type B’ claim attracts an issue fee of £250 and a hearing fee of £950 (and Employment Appeal Tribunal [EAT] issue and hearing fees are £400 and £1,200 respectively). With discrimination claims classified as ‘Type B’ (and freedom from discrimination being a fundamental right protected under EU law) there have been several voices of dissent, notably from the public service trade union UNISON. Having failed to secure injunctive relief in advance of the imposition of fees, UNISON was granted permission to apply for judicial review on 29 July 2013. The Equality and Human Rights Commission (EHRC) was joined as an intervener on 14 October 2013.

UNISON challenged the decision to impose fees on four grounds…

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