Union granted challenge to employment tribunal fees move


A union fighting against a Government decision to make workers pay to pursue proceedings in employment tribunals has been given the go-ahead to take its action to the UK's highest court.

Supreme Court justices have granted Unison permission to challenge a Court of Appeal ruling which went against it in August last year over the introduction of employment tribunal fees.

The UK's largest union describes the fees as "unfair and punitive", and argues that many people will be unable to afford to bring claims against employers.

Under changes introduced in July 2013, workers are now charged a fee to bring a claim, a fee if the claim is heard and a further charge if they want to appeal against a decision.

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, which is at the centre of the dispute, imposed fees for the tribunals for the first time.

The Supreme Court announced on Friday that it had granted Unison permission to appeal in its case against the Lord Chancellor. A hearing will now take place at a date to be fixed.

Unison's judicial review action was heard by appeal judges after it lost its case at the High Court in December 2014.

The union argued during the High Court proceedings that the fees regime for employment tribunal hearings and appeals breached EU legal principle and rendered employment rights "illusory".

It further submitted that it indirectly discriminated against women, ethnic minorities and the disabled without any justification.

But the accusations were unanimously rejected by Lord Justice Elias and Mr Justice Foskett. Lord Justice Elias described the fees scheme for a whole variety of claims to employment tribunals as "justified and proportionate".

He said: "I have no doubt that each of the objectives relied upon in this case is a legitimate one and that the scheme taken over all, particularly having regard to the arrangements designed to relieve the poorest from the obligation to pay, is justified and proportionate to any discriminatory effect. Moreover, the costs are recoverable, in general at least, if the claim succeeds.''

The Government opposed the action and said the aim of introducing fees was to "transfer some of the approximate £74 million cost of running the employment tribunals and the Employment Appeal Tribunal from the taxpayer to those who use the system''.

Unison then challenged the High Court's decision at the Court of Appeal, but suffered a further defeat at the end of a hearing before Lord Justice Moore-Bick, Lord Justice Davis and Lord Justice Underhill.

The Supreme Court said the issue in the case was whether the Court of Appeal "erred in its approach to the EU principle of effectiveness", in its "approach to indirect discrimination and in concluding that the fees order was not indirectly discriminatory".