Was the introduction of fees for Claimants to bring a claim to an Employment Tribunal unlawful? Not according to the High Court.
Under new rules introduced in July 2013, workers in the UK are now charged a fee to bring a claim to an employment tribunal, a further fee if the claim is heard and another charge if they want to appeal the decision.
In October 2013 the trade union Unison was granted a judicial review hearing in the High Court, where it claimed that the introduction of fees was “unfair and punitive” and that it would shift the balance in favour of the employers by “pricing workers out of court”.
There were four challenges to the lawfulness of the 2013 Order:
That the requirement to pay fees violates the principle of effectiveness since it will make it virtually impossible and excessively difficult to exercise rights conferred by EU law.
That the requirement violates the principle of equivalence since the requirement to pay fees, or fees at the levels prescribed, means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions.
That in reaching the decision to introduce the new fees regime, the Government acted in breach of the Public Sector Equality Duty.
That the effect of the Order is indirectly discriminatory and unlawful.
All of these challenges were dismissed by the High Court in February 2014.
According to the High Court judgment in R (on the application of Unison) v Lord Chancellor and another, the evidence presented by Unison had been too hypothetical to give a full picture of whether or not the fees were unfair. Lord Justice Moses said that the “fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime”.
Unison has indicated that it intends to appeal to the Court of Appeal with General Secretary Dave Prentis stating: “The bottom line is that the Government should not put a price on justice. We strongly believe that these fees are unfair and should be dropped, which is what we will argue in the Court of Appeal.”
The door may still be open to future challenges, if not to the fees in principle, then to the level of the fees. This is one debate that is likely to rumble on for some time yet.