I had quite fancied UNISON's chances here as the level of fees is high and could well be prohibitive for some employees with entirely valid claims. UNISON argued that the fees, which are £160 or £250 to lodge a claim, with a further charge of either £230 or £950 if the matter goes to a hearing, were unfair and limit access to justice. It was argued that the imposition of the "punitive" fees are contrary to EU Law and amount to indirect discrimination as the high level of fees would have a disproportionate impact on women.
This is a very significant decision and means that the Tribunal fees are here to stay for now which is good news from an employer's perspective.
The full decision can be viewed here:-
If you would rather not read the full judgment, some of the key elements of the decision are set out below:-
Principle of effectiveness
Para 42 "The mere fact that fees impose a burden on families with limited means and that they may have to use hard earned savings is not enough. But it is not possible to identify any test for judging when a fee regime is excessive. It will be easier to judge actual examples of those who assert they have been deterred by the level of fees imposed."
Para 47: "We remain unpersuaded by the hypothetical evidence that the principle is being breached".
The Court noted that the period of time to raise a claim (and period before any hearing) should be enough to raise the money for the fees - and noted that where a remission applies, there is more time. They held that a fee system needs to be flexible and if it is shown that there is a dramatic drop in claims and a breach of the principle of effectiveness, the Lord Chancellor will change the system without the need for further litigation (para 46).
Para 56 "Now that, as we emphasize, the Lord Chancellor agrees that a successful employee should expect to recover the fees they have incurred from the employer, the level of fees to be paid under the 2013 order does not breach the principle of equivalence"
Breach of Public Sector Equality Duty
Para 69 - again like the first ground, if the system is seen to adversely impact this duty, the "fundamental obligation" is on the Lord Chancellor to eliminate this as far as possible. They acknowledged the "genuine fear" that the introduction of fees will impede the goal of eliminating discrimination - whether this is well founded remains to be seen on how the fee system works in practice.
Para 84 - "we have a strong suspicion that there will be some disparate effect on those who fall within a protected class who bring type B claims and therefore incur significantly higher fees than those bringing type A claims"
However, at para 88 it held that its not possible yet to gauge the extent of the impact and therefore not possible to reach a conclusion on objective justification.