Court Rules on Challenge to Employment Tribunal Fees

Posted: 7th February 2014

The controversial decision to introduce charges for access to Employment Tribunals (ETs) has survived a judicial review challenge by trade union UNISON. However, the High Court has urged that the system be kept under close review and has expressed ‘a strong suspicion’ that aspects of the fees structure may indirectly discriminate against women and minority groups.

UNISON, with the support of the Equality and Human Rights Commission (EHRC), argued that the charges, introduced in July 2013, were pitched so high that they would make it ‘virtually impossible, or excessively difficult’ for many people of modest means to access ETs or the Employment Appeal Tribunal (EAT).

The fees in respect of the issue of proceedings ranged from £160, for ‘type A’ cases, to £250 for ‘type B’ matters which were perceived to be more complex. Hearing fees were set respectively at £230 and £950; special provisions applied to matters involving multiple claimants and further substantial charges – totalling £1,600 – were applied to proceedings before the EAT.

Rejecting arguments that the fees violated the European Union (EU) principle of effectiveness, the Court found that provision for the remission of charges in cases of hardship meant that there was ‘sufficient opportunity’, even for those of very modest means, to accumulate funds to pay them. “Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult,” the Court observed.

UNISON also argued that the fees breached the principle of equivalence, which requires that domestic rules of procedure for the exercise of rights derived from EU law must not be less favourable than those governing similar domestic actions. However, in dismissing that argument, the Court noted that a successful employee would ordinarily expect to recover the fees from the employer.

It was submitted that the fees structure breached the public sector equality duty enshrined within the Equality Act 2010. Whilst acknowledging that there may be substance in arguments that the fees structure failed properly to take account of the impact on women bringing discrimination claims, the Court noted that it was too early to say whether such concerns would be justified by experience.

The Court expressed a strong suspicion that the higher fees applicable to type B cases might have a disparate impact on minority groups, such as women, ethnic minorities and the disabled. It was therefore incumbent on the Lord Chancellor to keep the system under careful review to eliminate, as far as humanly possible, any indirect discrimination. The fees had been so recently introduced that it was impossible to say, on the current state of the evidence, whether they would have the discriminatory impact feared by UNISON and the EHRC.