There won’t be a judicial review of Tribunal fees – at least for now!
25th March, 2014
Following the introduction of fees into the Employment Tribunal and Employment Appeal Tribunal on 29 July 2013, two judicial review applications were made.
The first application, submitted by Fox and Partners, was stayed pending the outcome of the second application, by Unison.
The High Court has now rejected the judicial review application against the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 in The Queen on the Application of Unison v Lord Chancellor  EWHC 218 (Admin).
The judicial review application was based around four points:
1. It was asserted that the requirement to pay fees makes it virtually impossible or excessively difficult for claimants to access the Employment Tribunal and Employment Appeal Tribunal.
The impact of fees was assessed by considering a range of hypothetical claimants with differing income and capital backgrounds. The High Court held that although proceedings will be expensive, the introduction of fees did not make bringing a claim virtually impossible or excessively difficult. The Tribunal will encourage a full exchange of information prior to the hearing fee being payable, giving claimants the opportunity to fully assess their prospects of success.
2. The application stated that the requirement to pay fees at the current levels is less favourable than the fee regimes governing similar domestic actions
The High Court found that the introduction of fees was in fact comparable to the costs regimes in other proceedings (such as County Court proceedings). In addition, the introduction of free early claim conciliation through Acas and the likelihood that successful claimants will recover their fees meant that the principal of equivalence was not breached.
3. The third point raised in the application was that the introduction of fees to the Employment Tribunals and Employment Appeal Tribunal was a breach of the Public Sector Equality Duty
It was held that the Public Sector Equality Duty was not breached as there had been substantial consultation over the level of fees and the fee remission scheme. The High Court noted that the Public Sector Equality Duty is a continuing duty and, as such, the regime will continue to be assessed.
4. The final assertion in the application was that the introduction of fees was unlawful and an act of indirect discrimination.
The indirect discrimination assertion was in relation to the two levels of fees. Although the High Court could not accept a general proposition that women earn less than men and are therefore indirectly discriminated against by the fees regime, it also could not reach a conclusion on the objective justification for Type B fees. The High Court therefore noted the duty on the Lord Chancellor under the Equality Act 2010, which makes him accountable if the fee regime is proven unfair.
Although this judicial review application was rejected, it does leave scope for further challenges to the fees regime in the future, in particular in relation to the two levels of fees. A key point that the High Court noted was that this application had been brought prematurely and as a result, the robust evidence needed to persuade it to overturn the fees regime was absent. We therefore look out for future cases on this matter.
For further information and advice in relation to Employment Tribunals, fees and fee remissions, please contact Helen Watson on 01244 405565 or send an email to [email protected].