The judicial review application made by Unison in relation to the perceived unfairness of the Employment Tribunal Fees rumbles on.
Up until July 2013, no fees were payable by claimants wishing to bring a claim to Tribunal.
Fees were introduced as of 29th July 2013. The fee for a discrimination claim is currently £250 for issue and £930 for final hearing - in excess of £1,000 in total.
In February 2014 Unison's initial judicial review was rejected. This was because the High Court considered the application to be premature and so rejected Unison's claim that the system was unlawful. They did indicate that a future challenge might be possible.
That further challenge was made in October 2014 on two grounds;
- The first was that the fee system infringed the EU principle of effectiveness. It was said that the cost of the fees made it virtually impossible or at the least exceptionally difficult, for a number of potential applicants to bring a claim. This rendered their employment rights "illusory".
- The second was that the fee scheme was indirectly discriminating against women, ethnic minorities and disabled people by disadvantaging them in making a claim.
The High Court rejected Unison's claims.
Unison appealed both decisions and the Court of Appeal dismissed both appeals.
But in February of this year the story moved on as the Supreme Court gave Unison permission to appeal the Court of Appeal's judgement.
Meanwhile, the Government's own review into the fees system is ongoing. This began in June 2015. It is understood that a report has been submitted but there is no clear timetable as to when the outcome will be published.
The vast majority of potential claims are currently dealt with by way of settlement outside of Tribunal, and this is likely to continue where the cost of bringing a claim is seen as a disincentive. Settlement is most often by way of a settlement agreement.
If you are an employer looking to offer a settlement agreement to an employee or an employee whose employer has offered a settlement agreement then Fosters can help. Please contact Chris Fielding in the litigation and employment department.