September 30, 2015

Court of Appeal Rejects Challenge Against Employment Tribunal Fees

In R (Unison) v Lord Chancellor [2015] EWCA Civ 935, the Court of Appeal considered the lawfulness of Employment Tribunal fees.

By way of background, Employment Tribunal fees were introduced in the U.K. in 2013 (see our update of July 2013). Under this regime, claimants must pay an "issue fee" to submit their claim and a "hearing fee" before a full hearing. Unison, the public sector union, has challenged the lawfulness of this system.

The Court of Appeal has rejected Unison's latest challenge for a number of reasons. Firstly, while the Court found the decline in claims "startling", it did not accept that this alone meant that the fees prevented access to justice. The Court said there was no proof that workers had found themselves unable, rather than unwilling, to pay. Secondly, the Court also disagreed with Unison's argument that the system was indirectly discriminatory against women. Unison's argument was that, since more women than men bring complex claims (including for discrimination), women are disadvantaged by the fact that complex claims involve higher fees. The Court said it was legitimate for there to be a connection between the fee and the level of demand the claim placed on the Tribunal's resources.

This is far from the end of the matter, however: Unison has asked for permission to appeal to the Supreme Court, the government has started a formal review into the impact of the fees, and a Parliamentary committee is carrying out an inquiry into the matter. We will keep you updated on developments.

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