Earlier this month, the High Court rejected Unison’s attempt to bring judicial review proceedings against the Government following the introduction of fees for lodging claims and appeals and for taking them to a full hearing.
The union argued the rate of the fees was prohibitive to most employees earning an average wage and this impacted on their right to a fair hearing, both under UK and European law. It also argued in many cases it would cost more to bring the claim than the employee can expect to receive and this will act as a disincentive to bring claims, particularly for poorly paid workers.
All of the grounds were rejected, with the court deciding the fees regime provided ‘…sufficient opportunity even for families on very modest means…’
It also said: ‘Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult…’ There were also ways to manage cases to reduce the chance of fees being paid unnecessarily. In responding to other specific objections, the court said the “principle of equivalence” was not breached.
Unison had claimed fees offended this principle since the requirement to pay fees meant the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions. The court said there are advantages to the tribunal system over other courts and the costs regimes were different. In effect the application for judicial review was rejected on the basis it is too soon to assess the impact of the fees regime.
The court had been asked to consider evidence, much of it concerning hypothetical claimants and the predicted effect charging fees would have on their ability to bring claims.
Meanwhile, this is good news for employers. Until the introduction of Employment Tribunal fees in 2013, individuals had nothing to lose by issuing claims, leaving employers with the cost and inconvenience of defending sometimes unmeritorious claims.
However, evidence suggests claim volumes have reduced as a result of the fees regime – as well the impact of other considerations such as the increase to two years of the qualification period for bringing a claim – as claimants now have to balance the cost against the likelihood of success.
* Fergal Dowling is head of employment at Irwin Mitchell’s Birmingham office
