On the 26th August 2015, the Court of Appeal dismissed the challenge brought by Unison against the introduction of fees in the Employment Tribunals and the Employment Appeal Tribunal; R (Unison) v Lord Chancellor and another .
Unison argued that the introduction of fees prevented Claimants from having access to justice, that fees resulted in indirect discrimination and that the Lord Chancellor had breached his duty to have due regard to eliminating discrimination (known as the equality duty) in the public sector.
Whilst the Court of Appeal acknowledged that there had been a dramatic decline in the number of cases presented to the tribunal, it was felt that the figures on their own were insufficient to establish that Claimants were unable to pay the fees and therefore unable to have effective access to justice.
Fees were introduced in employment tribunals in July 2013. Claims are divided into two types dependent on the nature of the claim. Accordingly, the fee to issue a claim at the employment tribunal will be between £160.00 and £230.00. Additionally, if the claim does not settle, a Claimant may also have to pay a hearing fee of £950.00.
Claimants can apply for ‘remission’ which is a financial means based test, which if satisfied, a Claimant can avoid paying these fees. However, it is felt that the application for remission is a high threshold to reach.
So whilst this current challenge has been resisted, legal proceedings are not yet concluded. Unison has applied for permission to take its case to the Supreme Court. Additionally, the Ministry of Justice is carrying out a review of the fees and remission schemes, whilst a separate inquiry into the effect of tribunal fees is being conducted by the Justice Committee.
With such ongoing matters, coupled with the news this month that the Scottish Government has announced it intends to abolish employment tribunal fees, the question of tribunal fees rumbles on….So watch this space for further updates.