The legality of the Employment Tribunal fees regime was in the news again last week when the High Court dismissed Unison’s second attempt to force a review of the fees system. Unison had challenged fees on two grounds: 1. They were unlawful under the EU principle of effectiveness because it was difficult for applicants to bring a claim; and 2. The impact of fees was indirectly discriminatory on the grounds of gender. Both of these arguments were dismissed by the Court, although Unison have been given leave to appeal to the Court of Appeal.
The Court did accept that the “striking” 79% reduction in Employment Tribunal litigation was evidence that Tribunal fees were “extremely onerous” for Claimants (i.e. out of work), however the Judges felt that this was not so significant that the right to claim was “illusory”.
Carl Atkinson Says: This may be the end of the line for the attempt to overturn fees using a judicial review. Unison’s arguments were comprehensively addressed by the Court and if the case proceeds to the Court of Appeal, it is difficult to foresee that there would be a different decision. A political solution may now be a likely outcome if the Government’s review of fees concludes that a reduction in the level of fee could offer greater access to justice while still deterring meritless claims and generating income, or if there is a change in Government policy following the forthcoming election.