The High Court has confirmed that Tribunal fees are to stay for the time being. In the Judgment handed down on Friday 7th February, the Judicial Review application raised by UNISON was dismissed.
Under the controversial new Tribunal Fees regime, introduced in July last year, a Claimant is required to pay an initial fee of either £160 or £250 (depending on the complexity of the claim) to lodge a claim with the Tribunal and a further fee of either £230 or £950 should a full hearing be required.
UNISON argued that the introduction of the fees was effectively a bar on access to justice for individuals who had been treated unfairly by their employers and that many such individuals would be unable to raise the necessary funds in time to meet the tribunal deadlines. The union also argued that the fee system would be likely to be indirectly discriminatory in its effect in relation to women, who raise the highest percentage of discrimination cases, particularly sex discrimination cases.
Despite dismissing the application, the Court did make a number of notable points in relation to the fees and their future. The Tribunal rules currently do not guarantee that a successful Claimant will recover the fees they have paid after an award is made in their favour, though tribunal judges do have discretion to order the Respondent employer to reimburse the individual. However, it was noted in the judgment that the Lord Chancellor agrees that a successful Claimant should expect to recover the fees they have incurred from the employer. There were also a number of references in the judgment to the fact that the true effect of the introduction of fees remains to be seen and that should they have the effect that UNISON suggest, the system would be amended as necessary.
In light of the fact that Tribunal fees are designed to reduce the number of spurious claims made against businesses, the judgment would appear to be good news for employers at the moment, though it is doubtful that this will be the end of the matter and UNISON has already indicated its intention to appeal the decision. Some Claimants may also be more inclined to submit a claim now they have added certainty in relation to the reimbursement of the fees. Whilst there has been an obvious reduction in the number of tribunal claims since the introduction of the fee regime, it is still important for employers to ensure that dismissals and the treatment of employees generally is as fair as possible as many aggrieved employees will not be deterred from making claims despite the fees and others will be able to take advantage of the remission scheme which exempts individuals meeting certain criteria from paying fees.