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Posted 26 February 2014
by Simon Sanger-Anderson

UPDATE: Judgment on UNISON’s challenge of tribunal fees

Last month we produced a blog entitled: “UNISON challenges the legality of tribunal fees” The High Court has since passed judgment on the issue.

The Court did not find the tribunal fee system unlawful. However, the judgment still makes some interesting points.

First of all, the Judges highlighted that the Government guidance on the fee system was partially incorrect. The original guidance stated that there was no presumption that the employer would pay back the fee to the claimant if he was successful – it was up to the Court to decide if the respondent should be ordered to do so. Now there is a general presumption that if the claimant is successful, then the respondent will be ordered to pay the cost of the fee. Consequently this does not breach the principle of equivalence under EU law, because it is not less favourable than County Court claims.

The Court did not uphold UNISON’s claim that the fees indirectly discriminated against certain groups in society as there was a lack of real evidence to support it. Nevertheless, the Court stated that it has a “strong suspicion that there will be some disparate impact on those who fall within a protected class.” The Government is now under a duty to monitor potential discrimination and to rectify it if occurs.

UNISON claimed that the system breaches the EU principle of effectiveness. They claimed that it makes it impossible or excessively difficult for an individual to enforce their rights. UNISON put forward a number of hypothetical examples of claimants using the system, and how this affected their ability to bring a case. The Court rejected this, but only on the basis that there was not yet sufficient evidence and the Court will have to “wait and see how the system will work in practice.”

It would appear, in the Court’s view, that UNISON’s claim against the Government was premature, and they may have been more successful had they had waited

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About the author

Simon Sanger-Anderson

Partner

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group