Born Fee?

Tim Sheppard reviews the recent challenge to Tribunal Fees.

Fees have of course been payable in respect of claims presented to the Employment Tribunal since 29 July 2013, yet how many of us can without hesitation answer what they are? Before ruminating on the future of fees, I thought it might assist to remind us.

There are two types of claim, subject to any application for fee remission, which attract different fee levels based broadly on the amount of resources required to deal with them.

Type A claims (such as unlawful deductions from wages, redundancy payments, or refusals to allow time off from work) require a Level 1 issue fee of £160 and if the matter proceeds to trial, a hearing fee of £230.

Type B claims (which include unfair dismissal, discrimination and detriment claims) require a Level 2 issue fee of £250 and a hearing fee of £950. Fees are also payable in respect of applications before the ET and again there is a differential based on the Type of claim. An application for a review, for example, is £100 for a Type A claim and £300 for a Type B claim. Appeals to the Employment Appeal Tribunal require an issue fee of £400 and a hearing fee of £1200[1].

Unison challenge

When the fees were introduced, many practitioners were of the view that they were at a level which would act as a deterrent and would prevent some claimants with valid complaints from pursuing legal recourse in the ET. In R (on the application of Unison) v Lord Chancellor [2014] I.R.L.R. 266, Unison challenged the introduction of the fees at the outset, although the Judgment was not handed down until early February 2014.

The judicial review was based on the contentions that the requirement to pay the fees breached the EU principles of effectiveness and equivalence; the public sector equality duty and indirectly discriminated against minority groups, including women, ethnic minorities and the disabled. The Lord Chancellor argued that the challenge was premature, while Unison maintained that if proceedings were delayed it would lose the right to mount a legal challenge. The application was refused essentially on the basis that it was too early to assess the impact of the new regime. It was expressly stated by the Court, however, that the Lord Chancellor was obliged to assess the impact of the new regime based on evidence of its impact in practice. If it was apparent that the introduction of fees was having a disparate effect on those in a protected class, the Lord Chancellor would have to take such steps as were necessary to alleviate that effect.

MOJ Statistics

Just over a month later, on 13 March 2014, the Ministry of Justice published the ‘Tribunal Statistics Quarterly October to December 2013’. The data demonstrates that the number of ET claims presented in the last quarter of 2013 was 79% fewer than in the last quarter of 2012 and 75% fewer that in the preceding quarter. A huge reduction on any view but what does it reflect: disparate impact, or the weeding out of unmeritorious claims? A further question arises, when and/or by whom will there be a further challenge to the ET fee regime?