UNISON has announced that it is calling for a judicial review of the decision to introduce employment tribunal fees. Currently the Government plans to introduce fees on 29 July 2013.
The main arguments UNISON will pursue appear to be that:
1. It is unlawful to introduce fees which make it impossible or excessively difficult to enforce European Community law. UNISON are concerned that the fees will prevent working people from exercising their employment rights, as in some claims the fees imposed will be greater that the anticipated compensation. Fees for starting proceedings are £160 or £250 depending on the type of claim; with a further hearing fee of £230 or £950 (subject to means testing).
2. Fees are not payable at all in most claims brought to the First-Tier Tribunal (a similar tribunal at the equivalent level in the judicial hierarchy to the Employment Tribunal). UNISON is of the view that it is a breach of the principle of equivalence to require fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law.
3. Fees indirectly discriminate against women, who generally earn less than men. Given that women will not (if they are earning an average income) be entitled to remission, UNISON does not consider that impact could be said to be a proportionate means of achieving a legitimate aim.
4. There has been no proper assessment of the Public Sector Equality Duty. UNISON considers that an assessment should have been made of the potential adverse effect of introducing fees. Specifically, insofar as the numbers and proportions of claims pursued by individuals with protected characteristics which would previously have been brought before the introduction of fees and will now not be pursued.
UNISON initially wrote to the Ministry of Justice on 1 June 2013 warning them if they did not revoke the legislation UNISON would lodge proceedings. However, it is unclear from UNISON's press release whether the application has been lodged at the High Court.
Tribunal fees have been controversial from the time they were first proposed by the Government. Although they are due to be introduced in just over a month, it is perhaps unsurprising that they are being challenged. We will provide further updates on the UNISON challenge on our blog.