Reviews mean regime may not be secure in the longer term
Trade union Unison's attempt to have the employment tribunal fees regime quashed has suffered another setback, as the Court of Appeal has recently rejected the union’s claim that the fees regime is unlawful.
The main thrust of the union’s case was that the tribunal fees are set at such a high level that some claimants are being denied access to justice because they simply cannot afford to pay. The union argued this was a breach of the EU legal principle of effectiveness. This says that EU-based rights, including much of the legislation that regulates workplaces, must be underpinned by effective remedies where those rights have been breached, and a remedy is not effective if is impossible, or excessively difficult, for claimants to enforce those rights in practice.
Court of Appeal
Although Lord Justice Underhill, who gave the court’s decision, acknowledged that the introduction of fees has deterred a large number of potential claimants, he said this did not on its own mean there had been a breach of the effectiveness principle. The question was whether the introduction of fees had, at least in some cases, made it not simply unattractive but impossible to pursue a claim. Although he said he had a strong suspicion that the large decline in tribunal cases must reflect at least some cases of individuals who cannot, realistically, afford to pay the fees, he did not feel there was any safe basis for concluding definitively that that must be the case, based on the evidence available before the court. The court also rejected a claim by Unison that the fees regime was discriminatory.
Comment
Although the government has managed to resist this legal challenge, the longer term future of the fees regime is not secure. Unison plans to apply for permission to take its case to the Supreme Court, so the legal proceedings are not yet at an end. Furthermore, the judgment suggests that it may be possible for individual potential claimants to bring their own, separate legal challenges if they have been unable to afford a fee and have been denied a remission of them.
In the meantime, the government is carrying out a review of the fees and remission schemes. It is interesting that the judge in this case felt moved to comment that if that review reveals good grounds for concluding that part of the large drop in the number of claims has been caused by claimants being unable to afford to bring proceedings, then the level of fees and the remission criteria will need to be revisited.
The government could well come under some pressure within Parliament to reduce fees, following the decision last month of the Commons Justice Select Committee to launch its own inquiry into the effect of the introduction of tribunal fees. Even some employer groups have acknowledged that the current level of fees is too high. Furthermore, if fees are not reduced, the SNP is more likely to press for control over tribunal fees in Scotland to be passed to the Scottish Parliament as part of further devolution plans. We could then see a significant difference in fees between Scottish employment tribunals and those in England and Wales, something which the Ministry of Justice is unlikely to welcome.
With so many factors at play, although there is no prospect of fees being abolished following the government’s review, we could still see a meaningful reduction in fee levels within the next 12 months.
Naeema Choudry is a partner at Eversheds
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