On 17th December 2014 the High Court handed down its judgment in Unison’s application for judicial review to challenge the employment tribunal fees system. This second application was again unsuccessful.
The scheme was challenged on 2 grounds. Firstly, it was said to be unlawful under the EU principle of effectiveness, as it was virtually impossible or exceptionally difficult for potential applicants to bring a claim. Secondly, it was said that the scheme was indirectly discriminatory.
The High Court held that any restrictions must satisfy a proportionality test. Even if it is not excessively difficult to bring a case, an unnecessary hurdle which serves no useful purpose would not be proportionate. However, what proved fatal for the case was the lack of evidence. Unison relied on the recent employment tribunal statistics which demonstrated a substantial fall in claims. The High Court could not say if the potential Claimants were unable or unwilling to proceed based only on statistics.
As for indirect discrimination, the case focused on the grounds of sex. Type B claims (including discrimination and equal pay) attract a higher fee than Type A claims. The High Court held that a difference in fee could be justified by the level of service or resources required. As for the argument that women were more likely to bring such claims, the court focused on the appropriate pool, and this included male and female claimants. In any event, the scheme could be justified on the basis that those who used the employment tribunal system contributed to its running, it made the system more efficient, and it encouraged settlement.
Comment
This decision is not a surprise given the lack of evidence Unison provided to the High Court. However, the judgment clearly hints at a ’round 3′, when an actual disadvantaged Claimant may bring a test case. The Court has also given Unison permission to appeal, so this issue is far from being conclusively determined. Paul Burton Employment Associate says, “As stated in previous newsletters, it is our view that fees are here to stay, but that they may be reduced to a more reasonable level for Claimants in the coming months.”
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
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