Tribunal fees judicial review to be heard this month

Unison general secretary Dave Prentis speaking at the Labour party conference last month. Photo: REX

The new judicial review of the lawfulness of the Government’s introduction of employment tribunal fees will be heard later this month at the High Court.

The Lord Chancellor gave Unison the go-ahead last month to launch fresh proceedings in the light of consistent statistics from the Ministry of Justice that the number of employment tribunal claims has fallen dramatically since the introduction of upfront fees for claimants.

Prior to the introduction of fees in July 2013, the employment tribunals received, on average, 48,000 new claims per quarter. Figures for April to June 2014 show that there were only 8,540 new claims in this quarter, 81% fewer than the number of claims lodged in the same period in 2013.

The judicial review will be heard on 21-22 October 2014. Unison general secretary Dave Prentis said: “The High Court’s decision to schedule the judicial review within a month of the union filing its claim shows just how important the issue of tribunal fees is.

“Over the past year we have seen tens of thousands of workers denied access to justice simply because they can no longer afford to bring an employment tribunal claim. If the Government doesn’t abolish these unfair fees it is effectively rolling out the welcome mat to unscrupulous employers, and we must do everything possible not to let that happen.”

Sarah Hogg, associate solicitor at Fasken Martineau, said: “If Unison is successful in its challenge, the Government will have to take steps to adjust the fee regime. However, it is unlikely that the current Government will abolish the fee regime altogether. A more likely outcome would be a reduction to the level of fees, as a compromise between ensuring access to justice and deterring vexatious or speculative claims made in the hope of a settlement. On a more practical level, the Government has undertaken to refund any tribunal fees paid to date in the event that Unison is successful.”

But Max Winthrop, partner at Short Richardson & Forth, said the implications are not straightforward: “What about those cases where the tribunal has ordered respondents to pay the fees? What about cases where claimants have converted tribunal awards to County Court judgments for enforcement purposes?”

He also questioned the position of claimants who have already had claims struck out because they could not pay the hearing fee.

2 Responses to Tribunal fees judicial review to be heard this month

  1. Avatar
    Stan Byrne HRBP 10 Oct 2014 at 7:02 am #

    I do hope the review has more data to consider than claims lodged. For example will TU’s be asked to provide at least the number of members who have pursued a claim with them but not been supported by the TU? Additionally, what proportion of claimants were represented by TU’s prior to and after the introduction of fees? Most good TU’s have policies to support members with good cases. This data could be very revealing. I would like to see UNISON take the lead on providing this data. I would also like to see how many claims have been successful since fees were introduced compared to before fee introduction. Tribunals represent a significant expense to taxpayers and to employers, in time and money when having to defend claims. We all wish to see a system that is fair for all, not a free for all.

  2. Avatar
    Jane Bullen, HRBP 10 Oct 2014 at 9:29 pm #

    I wholeheartedly support the right of individuals to seek justice. However, the number of malicious cases brought before fees were introduced cannot be discounted when taking a decision to remove them. From personal experience, before the introduction of fees it was very easy for any claim to be made and listed with no evidence. ETs represent huge costs to employers and the taxpayer as Stan Byrne says, and are an especially difficult burden for charities. When an employer is doing all they can to be a fair employer and deal with poor performance or behaviours, they should be able to do so without having to then bear the costs of a spurious ET because the employee did not like the outcome, but was able to file a claim based on a 9-word claim: “I was dismissed because I have a protected characteristic”.