Last week, the Coalition’s controversial fees for employment tribunal (ET) claimants, set to come into force on 29th July, easily survived a last-minute challenge by Labour MPs in the House of Commons. But this week it emerged that, thanks to the public service union UNISON, the fees may soon face a somewhat sterner test in the High Court.
On 10 June, 16 MPs on a specifically-convened delegated legislation committee debated the two draft orders implementing the fees regime, the somewhat confusingly-named Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, and the Draft Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013.
The 90-minute debate was a highly partisan affair, with the Labour MPs making a spirited attack on the Government’s motivations, the Justice Minister, Helen Grant, offering a predictably formulaic but surprisingly lacklustre defence, and the Liberal Democrats seemingly having nothing at all to say on the matter.
Whilst Ms Grant repeatedly asserted that genuine claimants would not be deterred by the substantial fees, the shadow justice minister Andy Slaughter noted that ‘there is always a risk in litigation. To risk £390 to win £200 [in holiday pay] is bound to deter claimants.’ Noting that the ET fees are both ‘high in absolute terms’ and ‘about three times as high’ as civil court fees, Mr Slaughter condemned the Coalition’s fees regime as ‘so confused and misconceived that [it] will not work other than to suppress meritorious claims in employment cases’, whilst the shadow business minister, Ian Murray, noted that the regime ‘will undermine the very thing that everyone supports: early conciliation by Acas’.
Urging Ms Grant to consider some of the alternative fee regimes that have been proposed, Mr Slaughter noted the ‘interesting’ proposal from Citizens Advice of ‘a small fee that would not be off-putting for every individual who comes forward – £50 – and a fee to be paid by an unsuccessful respondent [employer]’. I recently re-iterated that proposal on www.thejusticegap.com, in the hope that it might influence future Labour policy on protecting vulnerable workers. For, as Ian Murray noted during the debate, the impact of fees will be felt not so much by trade union members (who will most likely have the fee paid by their union), but by the majority of workers ‘who are not represented by trade unions and who are unable to access the justice system’.
Unsurprisingly, Ms Grant and her Conservative colleagues, along with the silent Liberal Democrat, were not to be moved, and the Committee voted nine to seven in favour of the two draft orders. And, two days later, without any further debate, the Committee’s vote was confirmed by a 272 to 209 vote on the floor of the House of Commons (Hansard, 12 June 2013, col. 465).
However, earlier this week, the public service union UNISON lodged an application to the High Court for a judicial review of the fees regime, arguing that the fees will make it ‘excessively difficult’ for workers to exercise individual rights conferred by European Union law.
UNISON had sent a ‘letter before action’ to the Ministry of Justice on 1 June, urging ministers to revoke the two Orders referred to above, but did not receive any response.
In its application to the Court, UNISON highlights that, had the Government conducted a proper assessment, it would have ‘discovered that charging [such] high fees was disproportionate to the number of claims brought by individuals with protected characteristics and the low compensation that is often awarded’. We will have to wait and see what the judges make of this argument, but so far reaction to the announcement among employment lawyers has been mostly sceptical, with barrister Daniel Barnett concluding that ‘it’s obvious that there is adverse impact, but I think the Government will win on justification’.
On the other hand, employment law blogger Darren Newman, whilst conceding that ‘the odds may be against UNISON’, takes a more optimistic line: ‘there is a sensible argument there, [and] stranger things have happened’.
I think I’m with Darren on this one.
Richard Dunstan is a policy wonk who has worked for Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.