Unison loses latest round in fight against employment tribunal fees

While acknowledging the over decline in tribunal claims, the Court of Appeal has held that this alone is not sufficient to uphold the union’s challenge to employment tribunal fees. However, Nicola Sturgeon has today committed to pursuing their abolition in Scotland.

The Court of Appeal has dismissed Unison’s appeal against the High Court’s decisions to dismiss its applications for judicial review challenging the lawfulness of the introduction of the employment tribunal fee regime.

The fees were introduced in both the employment tribunals and the EAT in July 2013. Under the fee regime, individuals are required to pay a fee to make an employment tribunal claim. The amount of fee depends on the type of claim or appeal the individual is making. More complicated claims, such as unfair dismissal and discrimination complaints, attract higher fees of up to £1,200. A fee remission scheme is in place for those individuals who cannot pay the fee due to their financial situation.

Since the introduction of the fee regime, there has been a downward trend in the volume of claims received by the employment tribunals. Recent statistics show a 52 percent reduction in single claims in 2014/2015 compared to the year before and approximately one-third of remission applications for issue fees are successful.

Unison has maintained that many individuals cannot afford to bring claims against employers. The union’s judicial review applications were dismissed by the High Court last year, with the court finding that there was insufficient evidence that the striking drop in claims, since the introduction of fees, was due to the individual’s inability to pay.

While acknowledging the over decline in tribunal claims, the Court of Appeal has held that this alone is not sufficient to uphold the union’s challenge. To enable the court to conclude that employment tribunal fees are pricing workers out of justice, evidence of the actual affordability of the fees in the financial circumstances of typical individuals would also be required. The court also dismissed arguments based on indirect discrimination and public sector equality duty, but concluded that ‘the decline in the number of claims in the Tribunals following the introduction of fees is sufficiently startling to merit a very full and careful analysis of the causes; if there are good grounds for concluding that part of it is accounted by individuals being realistically unable to afford to bring proceedings, the level of fees and/or remission criteria will need to be revised’.

“At this time there is no change to the current fee regime,” says Nicola Butterworth, an associate in the employment law team at Howes Percival, “Employers will be aware of the Government’s announcement earlier this year that it will be reviewing employment tribunal fees to determine whether its objectives had been met, including seeking to maintain access to justice. Although the union’s most recent challenge has been unsuccessful, the Court of Appeal’s comments are likely to be taken into account by the review.”

“This has been an issue that Prospect has campaigned on across the UK,” said Alan Denney, Prospect’s national secretary for Scotland.

“We are very pleased that the Scottish government has identified this as a priority, and we look forward to working with ministers on this, and other issues, to make Scotland a better and fairer place for our members to work.”

The union, which represents 10,000 workers in the civil service, energy, defence and aviation in Scotland, says the introduction of fees for employment tribunals has had a dramatic impact on the numbers pursuing claims.

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