Further to our previous updates in relation to this issue, the Court of Appeal have now considered Unison’s challenge to the implementation of Employment Tribunal fees. In short, the Court of Appeal has decided that Unison’s challenge should not succeed and the fees regime should stand.
The Judges commented again on the lack of evidence presented by Unison in support of their case and, particularly, the impact that fees were having on individual litigants. This has been a recurring theme at each stage of their legal challenge. Whilst the Judges noted that there had been a dramatic decrease in the claims being brought at the Employment Tribunal, they concluded that of itself, this was circumstantial and did not demonstrate conclusively that the fees regime was hindering effective access to justice. The Court was also satisfied that the higher fees for some types of cases (such as discrimination cases) were not indirectly discriminatory because they were objectively justifiable. Although they accepted that more women than men might need to pay the higher fees on the basis that they were more likely to bring discrimination complaints, the level of the fees reflected the increased demands that these sorts claims placed on the Tribunal’s resources and as such, they were justified.
However, this is unlikely to be the last that we have heard on this issue and there remain a number of interesting developments on the horizon.
Firstly, Unison is taking leave to appeal to the Supreme Court to try and take this issue even further. Secondly, a formal review of the impact of the Employment Tribunal fees in England and Wales is currently being performed by the Ministry of Justice and it is expected to present its findings later in the year. Finally, there has been an interesting development in Scotland; the Scottish Government has announced in its Programme for Government 2015-16, entitled “A Stronger Scotland”, that it intends to abolish employment tribunal fees in the Employment Tribunal in Scotland, although it is unclear when these proposals will be implemented.
This is an area that all employers would be well advised to watch with interest.