The recently introduced UK employment tribunals and EAT fees regime will soon face judicial review proceedings brought by UNISON on the basis of an argument that it is ‘unjust and discriminatory’. Similar judicial review proceedings brought in Scotland have been stayed pending the outcome of this week’s hearing. Geoffrey Mead, partner at Eversheds, believes that this tribunal fees challenge could be costly for the UK government.
Ahead of the proceedings, Mead said: ‘If UNISON’s challenge is successful, the fees regime could come to an untimely end. The government has already pledged, in the context of the Scottish judicial review proceedings, that it will refund any fees already paid if the judicial review does succeed. This outcome would be nothing short of a fiasco for the government. If the UNISON challenge is successful, the government may be able to take some remedial steps to enable the regime to continue in existence, albeit in an altered form. This may depend on the reasons why the claim succeeds, if indeed it does.
‘Of course, there are downsides to the regime. Many successful claimants never receive their tribunal awards, and yet those same claimants will have incurred fees to obtain a judgment that is effectively worthless. Few could argue that that is a positive outcome. And even the regime’s greatest advocates might find some aspects of the fees regime disappointing. The hearing fee payment, which was heralded as a significant settlement opportunity, is scheduled so close to the hearing that — certainly in discrimination cases, many of which are currently being listed well into the future — all preparatory work will have been done, and therefore significant cost already incurred, meaning that parties are likely to be more deeply entrenched and hence unwilling to settle their cases.’
However, Mead added 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. He said: ‘Although preventing such claims was not one of the government’s stated aims in introducing fees, the regime will be welcomed by most employers if the number of claims they perceive as weak and unmeritorious is reduced.’