Employment tribunal fees to remain

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After much ‘will they, won’t they’ speculation, the High Court has dismissed UNISON’s challenge to the introduction of employment tribunal fees. This means that the current fee system will remain in place at least for the immediate future. The saga has not completely run its course as UNISON has confirmed that it intends to appeal and, in any event, there remains a real prospect of the fees regime being amended by a new Government after the General Election.

The key findings by the High Court were:

  • Whilst it accepted that there had been a ‘striking drop in claims’, it was not satisfied that there was sufficient evidence before it that this was due to claimants’ inability to pay.
  • No individual claimants had been identified as having been prevented by fees from bringing claims. The Court held that it could not test whether the EU principle of effectiveness had been breached without looking at the income and expenditure of actual individuals to see if the fees did indeed make it “virtually impossible or excessively difficult” for them to bring claims.
  • The fees regime was held not to be indirectly discriminatory against women. Earlier statistics had suggested that more women than men were affected by the higher fees for type B claims but more recent figures showed that the proportions of those paying the higher fees were 55% men and 45% women, which broadly reflected the gender balance in the UK workplace.
  • The fees scheme was justified. It had three distinct legitimate aims which were, a) transferring part of the system’s running costs to the users who benefit from it, b) improving efficiency by discouraging unmeritorious claims and c) encouraging alternative methods of dispute resolution. The Court held that the fees regime as a whole, taken together with the arrangements for remission, was proportionate.

According to the CBI’s Employment Trends Survey 2014, despite the massive reduction in the number of employment tribunal claims, 73% of businesses found that the time taken to resolve them had stayed the same or increased. This highlights the importance of ensuring that those claims which do make it to Tribunal (typically the higher value and more complex claims) are handled strategically and proactively from the outset. Whilst it can seem counter-intuitive, ‘front-loading’ a claim by investing time in addressing strategy and evidence in the very early stages can lead to an overall reduction in management time and legal costs.