Employment Eye – Alert! Tribunal Fee Challenge Unsuccessful

Last Summer, fees for the use of the employment tribunal service were introduced for the first time in its history. Since 29 July 2013, claimants have been required to pay an 'issue fee' of up to £250 to start their claim and, if it proceeds, a further 'hearing fee' of up to £950 is payable.  A 'fee remission' scheme allows for full or partial waiver of fees for claimants who can demonstrate that they meet a very stringent means test.

A Judicial Review of the legality of the decision to introduce employment tribunal fees was launched by UNISON in June 2013, who argued that fees

• were contrary to the European Community principle that national courts must not make it "virtually impossible or excessively difficult" to exercise individual rights
• breached the principle of 'equivalence' because they had only been introduced for the Employment Tribunal and not for the First-Tier Tribunal (a similar tribunal at the equivalent level in the judicial hierarchy)
• had been subject to inadequate assessment under the Public Sector Equality Duty
• were indirectly discriminatory, because they were likely to have a  disproportionate adverse impact on women who are likely to earn an 'average income' and therefore will not be entitled to a fee remission.

A Judicial Review of the introduction of employment tribunal fees concluded in November 2013 and the Administrative Court has today published its decision that UNISON's challenges have not been successful. UNISON has issued a press release stating that it will "fight on" and appeal against this decision. As a result of pressure from UNISON's case the Government have already amended their Guidance in relation to the repayment of tribunal fees. The general position is now that the employer will be ordered to reimburse the tribunal fees paid where the claimant is successful. We will keep you updated.