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Employment tribunal fees challenged in the High Court by trade union Unison

This fee scheme was recently brought to the High Court in application for judicial review. The trade union, Unison, made a second application, this time challenging the introduction of tribunal fees on the following two grounds: it is unlawful because it infringes the EU principles of effectiveness (i.e. the cost of litigation makes it very difficult to bring a claim) and it is indirectly discriminatory, namely against women.

The evidence upon which Unison brought these proceedings was statistical, this proved fatal for the case, for without any concrete examples of specific individuals who allegedly assert they are unable to bring a claim because of cost, the High Court held that Unison’s arguments could not properly be tested. Their application for judicial review as a result was dismissed, but the High Court has given them permission to appeal to the Supreme Court.

There will certainly be more challenges to come, as the judgment indicates that the courts will have to assess this fee scheme again, when there are actual disadvantaged people who have legitimate claims.

The justification for the introduction of tribunal fees was to transfer a proportion of the annual running costs of tribunals to those that benefit from them, to encourage dispute resolution, so that litigation is not the first resort and thirdly, to make the system more efficient and remove unmeritorious claims. On the home front, ARC campaigned on this last objective and many of the suggestions we put forward were adopted in one form or another, which we felt, was a resounding success.

In addition, the government has introduced the Deduction from Wages (Limitation) Regulations 2014 which:

(1) limit all unlawful deductions claims to the period of two years before the date that a claim form is lodged and,

(2) explicitly state that the right to paid holiday is not incorporated as a term in employment contracts.

The effect of this is to remove any chance employees have of bringing long-term claims for back holiday pay, either in the tribunal or civil courts. The regulations will apply to any claim brought after 1 July 2015.


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