Back on the 26th February 2016, UNISON won leave to appeal against the Court of Appeal’s decision to dismiss its Judicial Review appeal against the introduction of Employment Tribunal fees. The appeal is due to be heard by the Supreme Court shortly.
UNISON is basing its appeal on the following arguments:-
- That Employment Tribunal Fees breach the effectiveness principle enshrined in Article 47 of the EU Charter, as the size of the fees is such that Claimant’s are practically denied a remedy. Under Article 47, a person whose rights have been breached is entitled to access to an effective remedy for that breach. Unison point out that since the introduction of the fees back in 2013, the number of Employment Tribunal claims has dropped by 70%. This is evidence, they say, of the fact that Claimant’s have been deprived of an effective remedy.
- That the fees are indirectly discriminatory in that Claimant’s claiming discrimination have to pay the highest Tribunal fees, and those Claimant’s are predominantly female
- That the two-tier fees regime places the Lord Chancellor in breach of his duty to eliminate discrimination
In rejecting the appeal, the Court of Appeal stated at the time that it was “troubled” by the 70% drop in cases. Nevertheless, it was ludicrous of the Court of Appeal to hold that the fee regime did not breach the effectiveness principle as it self-evident that there has been a 70% drop in cases since the introduction of the fee regime in 2013, and that there is no other credible explanation for the fall other than the fee regime. Accordingly, given that the fee regime is the main reason and that 70% of potential Claimant’s are effectively being prevented from pursuing the only remedy available to them by those fees, then quite obviously there has been a breach of effectiveness principle. The Court of Appeal’s decision was an absurdity. The Court justified the decision on the basis of insufficient evidence of an inability to pay the fees. That, however, is ridiculous. The 70% drop says it all in terms of confirming that the fees are unaffordable for most potential Claimant’s.
In relation to the forthcoming Supreme Court appeal hearing, Dave Prentis, UNISON General Secretary, stated: “We’re delighted that the Supreme Court has given us permission to continue our legal fight against these unfair and punitive fees. Three years ago the government introduced tribunal fees, immediately making it much harder for employees – especially those on low incomes – to challenge bosses who break the law. Unsurprisingly employment tribunal claims have since dropped by 70 per cent. As a result it’s too easy for bad employers to escape justice. Many low-wage workers now have to put up with unfair or discriminatory treatment simply because they cannot afford to take a case. UNISON’s challenge against fees may have been several years in the making, but we’re determined not to give up the fight. Thousands of low-paid workers will be pinning their hopes on us being successful.”
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