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Published 19 December 2014
In October, Unison challenged the lawfulness of the Employment Tribunal fees regime in a Judicial Review application for a second time (please see our previous alert for the details of the application and the background). Yesterday the High Court issued its judgment and the application has been dismissed. The High Court did, however, give permission for Unison to appeal and Unison has already announced its intention to do so. Expect to hear more on the subject...
This is now the second time the judicial review application has been dismissed due to the quality/scope of evidence presented, rather than the technical, legal arguments. The first application was rejected, as there were insufficient statistical data about the long term impact of Tribunal fees. Now, with a full year's data, the High Court has acknowledged the "dramatic" effect of the introduction of fees on claim numbers (a more than 70% drop in claims). Despite this, it was critical of a lack of evidence from actual potential claimants (as opposed to hypothetical ones) saying that they could not make claims due to the unaffordability of Tribunal fees.
Mr Justice Foskett at paragraph 96 of the Judgment, said:
"...the effect of the introduction of the new regime has been dramatic. Indeed it has been so dramatic that the intuitive response is that many workers with legitimate matters to raise before an Employment Tribunal must now be deterred from doing so because of the fees that will be demanded of them before any such claim can be advanced. For my part, I would anticipate that if the statistics upon which reliance is placed in support of this application were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an Employment Tribunal through lack of funds, which would not have been the case before the new regime was set in place. However, that assessment has to be seen as speculative until convincing evidence to that effect is uncovered. If it is, of course, the Lord Chancellor would doubtless feel obliged to address it."
The Judgment leaves open the questions of whether Tribunal fees (1) breach the EU principle of effectiveness, and (2) are indirectly discriminatory. The issue now seems to be whether Unison can collate real evidence that will persuade a court.
The continued existence and level of Tribunal fees remains up for debate. They will continue to be challenged by Unison to the Court of Appeal and will be an issue in the run up to the general election in May 2015. Labour has promised to reform the fees regime and this week Liberal Democrat Employment Minister, Jo Swinson, wrote to the courts and Legal Aid Minister, Shailesh Vara, to demand an urgent review of Tribunal fees:
“There is a clear, necessary and now increasingly urgent need for this review to take place...As a Government, we committed at the time of their introduction to review the impact of fees and, 18 months on, this is now long overdue.
"We need to undertake an open and objective assessment of the impact of these reforms as well as any unintended consequences...I want to ensure that a full assessment of the equalities impact of the introduction of fees takes place without further delay, particularly given the alarming drop in sex discrimination claims.”
We will keep you updated on Unison's appeal and you can follow the debate at @DACBEmployment
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