Following the High Court’s negative determination of UNISON’s second judicial review over tribunal fees, UNISON was given permission to appeal and lodged an appeal at the Court of Appeal on 7 January 2015. (See UNISON’s press release: https://www.unison.org.uk/unison-to-appeal-high-court-decision-over-tribunal-fees).
This second claim to the High Court was brought following the overwhelming evidence provided by the Ministry of Justice in the form of quarterly statistic, showing a dramatic reduction in Employment Tribunal claims. This evidence, showing a 91% drop in sex discrimination claims, and an overall drop in claims of 80%, was provided to the High Court, who described the extraordinary fall in the number of claims as “striking”. Lord Justice Elias anticipated that some workers would have insufficient funds to bring claims.
UNISON hopes that the Court of Appeal will agree to hear this appeal together with its appeal of the earlier High Court decision over tribunal fees.
Employment tribunal fees price workers out of justice
Since July 2013, when the government introduced fees for anyone taking their employer to an employment tribunal, there has been a huge drop in claims. This is denying workers access to justice – and in particular women with discrimination claims. Official statistics show an 81% drop in claims lodged between April and June 2014, compared to the same time in 2013. All types of discrimination claims, for which a fee of up to £1,200 is now payable, have fallen: the worst affected being sex discrimination cases, which are 91% down. Even ‘straightforward’ claims for unpaid wages attract a fee of £390, which may, in some cases, be more than the amount sought by the worker.
Despite ministers’ assertions that the change was needed to prevent unfounded and vexatious claims, no evidence has emerged that shows the drastic decline is attributable to the falling of such claims. On the contrary, evidence gathered by the TUC, Citizens Advice Scotland, Citizens Advice (England and Wales), the Law Society of Scotland and the universities of Bristol and Strathclyde shows that workers with genuine cases are being prevented from lodging their claims simply because of their inability to pay the fees.
This effectively means that a growing number of unlawful employment practices are going unpunished. When ministers say it’s not right that taxpayers should foot the bill for employment tribunals, they overlook the fact that the workers bringing claims are themselves taxpayers.
The government is currently reviewing its fees policy. It must, as part of this process, conduct a full equality impact assessment highlighting just how the charges are affecting workers bringing claims relating to sex, age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, and sexual orientation. Workers’ access to justice cannot be guaranteed while fees remain in place. The government must end this unfair and inequitable policy by abolishing fees at the first opportunity.
- Frances O’Grady General secretary, Trades Union Congress
- Len McCluskey General secretary, Unite the Union
- Carolyn Jones Director, Institute of Employment Rights
- Andrew Alexander The Law Society of Scotland
- Andrew Caplan President, The Law Society of England and Wales
- Margaret Lynch Chief Executive, Citizens Advice Scotland
- John Hendy QC Old Square Chambers
- Keith Ewing Professor of public law, King’s College London
- Nicole Busby Professor of labour law, University of Strathclyde
- Morag McDermont Professor of socio-legal studies, University of Bristol
The Law Society’s Employment Law Committee has embarked on a project to look at the future of Employment Tribunals. The consultation paper can be read here. An IER response to the consultation is to follow.