News & Views

Court of Appeal rejects Unison challenge of fee regime

BY Heather Kemmett
Employment law
BG Purple

Another day, another court decision on the employment tribunal fee system, or so it seems! The Court of Appeal has rejected another challenge from Unison contesting the validity of the fee regime which came into effect in July 2013. 

The introduction of fees was broadly welcomed by employers, who reportedly face average costs of £8,500 each time a case is brought. But they have also been branded “a barrier to justice” by organisations representing employees. Fees are currently set at either £160 or £250 to lodge a claim followed by a hearing fee of £230 or £950 (depending on the type of claim).  

This is Unison’s fourth court case on the matter. The union initially attempted, unsuccessfully, to block the fee regime before it came into effect. It then launched two further High Court challenges, in October 2013 and September 2014. Both were rejected by the High Court but the union was given leave to appeal to the Court of Appeal, where the latest case was heard.  

The Court of Appeal has once again rejected the union’s case but has expressed concern at the reduction in claim numbers, describing the decline as “startling”. In March 2014 the first full quarterly comparison of claim numbers pre- and post-fees was published showing a dramatic 79% reduction in claims. The latest 2015 quarterly figures show that claims have continued to decline with a 52% reduction compared to the same period last year (fees were payable during both reference periods). 

However, the Court was reluctant to take action on the basis of statistics alone, preferring to await the outcome of the Ministry of Justice’s fee review which is currently underway, and warning that the decline merited “a full and careful analysis” of the root cause. Lord Justice Underhill commented that, if the decline is due to claimants’ inability to pay fees, the level of fees and / or remission criteria would have to be revisited. 

The results of the MoJ review are expected to be published later in the year. Meanwhile, Unison has sought leave to appeal this Court of Appeal decision to the highest court in the UK, the Supreme Court.

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