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Tribunal fees challenge

Guy Lamb, a Partner in our Leeds office, comments: 

This month will see one of the biggest shake-ups of the employment law landscape for decades, as fees will be charged to bring claims in the employment tribunal for the first time. Fees are due to be introduced in respect of all claims commenced on or after 29 July 2013. The tribunal fee will be paid in two stages – an issue fee and a subsequent hearing fee – and will depend on the type and complexity of the claim and the number of claimants. We will be publishing a Be Alert later this month with full details of the fee system and what this will mean for employers and employees. However, in the meantime the future of fees has been called into question as the trade union Unison is challenging the decision by the Ministry of Justice to bring in fees by calling for a judicial review.

Unison is arguing that, contrary to EU law, by bringing in fees the government will make it virtually impossible for a worker to exercise their rights under employment law. The new fee regime will impose fees which may be greater than the expected compensation, even if the claims were successful. Many of the claims with which the tribunals deal are for small amounts of unpaid wages or holiday pay.

The union is also arguing that there has been no proper assessment of the Public Sector Equality Duty. An assessment should have been made of the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics which would previously have been brought and will now not be pursued. The union is also highlighting that, had the government conducted a proper assessment, it would have discovered charging high fees was disproportionate to the numbers of claims brought by individuals with protected characteristics and the low compensation that is often awarded.

It seems unlikely that Unison’s challenge will succeed, as the threshold for judicial review is set very high; in order for a judicial review to be successful, Unison would have to show that the government had acted in a way that no reasonable government could act by implementing the scheme in the way it has. In the current economic climate, the government’s stated aim to save taxpayer’s money by transferring some of the burden of the costs of the tribunal system to its users may prove difficult to attack.

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