Union to pursue judicial challenge to fees
Labour & European Law Review Weekly Issue 356 12 February 2014
Unison has said it will appeal a High Court ruling last week that held proceedings challenging the requirement to pay fees in employment tribunals were premature.
The union has said that it wants the Court of Appeal to consider the arguments it put forward in a judicial review challenge, particularly that the introduction of fees to pursue a claim in the tribunal has a disproportionate impact on women.
As a result of new rules introduced in July last year, claimants have to pay a fee to issue a complaint in the employment tribunal or to lodge an appeal to the Employment Appeal Tribunal. These start at £160 to lodge a claim for unpaid wages to £250, to lodge a claim of discrimination. A further fee has to be paid to have the claim heard which can vary between £230 for a claim for unpaid wages to £950 for a discrimination claim. This gives a total cost of £1,200 to pursue a claim for discrimination.
Unison argued that the requirement to pay fees violated the “principle of effectiveness” as having to pay a fee made it “virtually impossible or excessively difficult” for claimants to exercise rights conferred by EU law. They also violated the “principle of equivalence” since the requirement to pay fees (or fees at the levels set by the government) meant that the procedures adopted to enforce rights derived from EU law were less favourable than those governing similar domestic actions. The union also said the Lord Chancellor had breached the public sector equality duty and that the imposition of higher fees in discrimination claims was indirectly discriminatory.
The union provided statistics showing a drop of 56 per cent in the overall number of claims from September 2012 to September 2013, with a fall of 78 per cent in all discrimination claims and an 86 per cent drop in sex discrimination claims.
Although the court found against the union because it was too early to gauge the impact of fees, it said it had a “strong suspicion” that there will be a disparate impact on those who bring claims which require the higher fee to be paid.
Jo Seery at Thompsons Solicitors said: “Whilst the decision is a massive disappointment for those caught up in the current fees regime, the issue will not stop here and union members will continue to benefit from systems in place which enable them to pursue claims where necessary.”
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