Tribunal Fees are not a barrier to justice… for now... says the Court of Appeal
The Court of Appeal has dismissed Unison’s judicial review appeal against its challenge to the legality of Tribunal fees.
Whilst the Court was “troubled” by the reduction in the number of Tribunal claims since the introduction of the fee system, it concluded that the fee remission regime currently in place meant that the fee system was not so unaffordable so as to deny individuals the opportunity of issuing a claim against their employer. It went on to dismiss the arguments based on indirect discrimination and the public sector equality duty.
However, it noted the government’s commitment to a review* of the fees regime, and observed: “The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by Claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited.”
Comment: It rumbles on though as Unison have said that they will now seek permission to appeal to the Supreme Court. Watch this space – we will keep you updated as things develop.
*Note: The Commons Justice Select Committee has now launched an inquiry into court and tribunal fees, with a particular focus on whether the introduction of fees has affected access to justice.
Important: This is different from the Ministry of Justice’s review of employment tribunal fees. Here are the main differences between the Justice Select Committee Inquiry, and the MOJ internal review:-
- the Select Committee is taking evidence from external bodies, including court/tribunal users. The MOJ internal review is not.
- the Select Committee is made up of 11 cross-party MPs. The MOJ internal review is being undertaken by MOJ civil servants.
- the Select Committee’s terms of reference are looking at courts and tribunals generally. The MOJ internal review is only considering the impact of employment tribunal fees.
- the MOJ internal review’s terms of reference include assessing whether the fees regime has successfully transferred costs from the taxpayer to tribunal users. The Select Committee’s terms of reference do not include that objective.
Obviously this issue is of great importance to employers has the introduction of fees have had a major impact on the number of claims brought by disgruntled employees. Any reduction of fees or changes to the fee remission scheme could see the risk and number of Tribunal claims rise once more.
Related to tribunal fees - Scottish government plans to abolish employment tribunal fees
The Scottish government has promised to scrap employment tribunal fees north of the border, using new powers included in the Scotland Bill.
The announcement was included in the 2015-16 Programme for Government, entitled ‘A Stronger Scotland’.
As part of a commitment to “create a fairer country”, Scottish first minister Nicola Sturgeon plans to “abolish fees for employment tribunals – ensuring that employees have a fair opportunity to have their case heard”.The statement said: “We will abolish fees for employment tribunals, when we are clear on how the transfer of powers and responsibilities will work. We will consult on the shape of services that can best support people’s access to employment justice as part of the transfer of the powers for employment tribunals to Scotland.”
Many employee bodies criticised the original introduction of fees, including Citizens Advice Scotland (CAS), which said the system was “exploiting workers” and had “altered the balance of power at work”.
However, some legal experts warns of ‘forum shopping’ if Welsh and English staff seek cheaper justice by in-effect creating different legal positions north and south of the border, there is a risk that some businesses will put Scotland and the UK into the ‘too difficult’ box,” says Stuart Neilson, a Glasgow-based employment partner at law firm Pinsent Masons. “There is also a real risk of ‘forum shopping’,” he added.“As the rules currently stand if any employer has a place of business in Scotland, claims from UK employees can potentially be brought there irrespective of where the subject of the grievance took place or the employee actually worked. If there is an increase of claims lodged in Scotland, cost of administration to the public purse will increase accordingly. That may lead to a revision of the rules around jurisdiction”.Neilson said the Scottish government’s pledge ignored the wants and needs of employers.
Comment: Interesting times ahead for Scotland and England and their respective employers and employees if this is allowed to happen. Clearly Scotland do not agree with the Court of Appeals decision that actually the fees are not a barrier to justice!
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