03/09/2015

The fees paid by claimants in order to use tribunals and the Employment Appeal Tribunal continue to be a hotly contested political and judicial issue, and further developments have been announced.

This week, the Scottish Government said that it will abolish tribunal fees in Scotland.  For more information, please see the Programme for Scotland. The relevant announcement is at page 38: "We will abolish fees for employment tribunals, when we are clear on how the transfer of powers and responsibilities will work." Under clause 25 of the Scotland Bill, power will be devolved to the Scottish Parliament in relation to the administration and management of employment tribunals.

In a separate, but related, development, Unison's latest challenge to the legality of employment tribunal fees was dismissed by the Court of Appeal last week. In R (Unison) v The Lord Chancellor [2015] EWCA Civ 935, Unison unsuccessfully argued that:

  • fees prevented claimants' access to justice,
  • the regime was indirectly discriminatory; and
  • the Lord Chancellor had failed to satisfy the public sector equality duty.

However, the Court of Appeal rejected these arguments, saying that there was a lack of evidence that the imposition of a fee had deterred specific claimants from making use of the employment tribunal system. The Court of Appeal also said that any indirect discrimination was justified because of cost.

Although the Court of Appeal rejected Unison's appeal, it did note that the sharp decline in claims since the introduction of fees was "startling". The Court noted in its decision that the government has committed to a review of fees, and that the level of fees, or the criteria for fee remission, should be revised if it is found that fees are having a significant impact on claimants realistically being able to bring their claims.

The Government's review of employment tribunal and Employment Appeal Tribunal fees was announced in June 2015 and is expected to publish at the end of this year.  This will be followed by a consultation on the proposed recommendations to reform the fees and remission scheme and to streamline the procedures involved.