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Controversial Employment Tribunal Fees Are Lawful

Controversial charges imposed on those who use Employment Tribunals (ETs) have been approved by the High Court – despite a trade union’s plea that they discriminate against the poor, weak and vulnerable, rendering their employment rights illusory.

Access to ETs and the Employment Appeal Tribunal (EAT) was free of charge until July 2013, when the Government for the first time introduced fees. Since that time, there has been a dramatic decline in the number of cases being heard. Only those on very low incomes are exempted, or partially exempted, from the charges.

Challenging the fees, the trade union Unison argued that they were unlawful under domestic and European law. They were said to make it ‘virtually impossible or at least exceptionally difficult’ for large numbers of people to access ETs and the EAT. They were also alleged to discriminate against women, ethnic minorities and the disabled, who would be less likely to be able to afford them.

Dismissing Unison’s case, however, the Court noted that, despite a wealth of statistics showing the huge impact of the charges on the number of cases passing through ETs and the EAT, there was little evidence of ‘actual cases’ in which people had been denied access to justice as an effective way of redressing wrongs.

The Government’s objective in introducing charges was to pass on about a third of the annual cost of running ETs and the EAT to litigants who could afford to pay fees. They were also designed to discourage unmeritorious claims, thereby making the system faster and more efficient, and to encourage other means of dispute resolution instead of treating litigation as ‘a first resort’. The Court found that those aims were ‘perfectly proper’ and justified any ‘very small’ discriminatory impact that the introduction of fees might have.