Unison’s second attempt to challenge the introduction of fees in the Employment Tribunal has been unsuccessful.
The union continues to challenge the lawfulness of Employment Tribunal fees on two grounds:
- The requirement to pay fees makes it “virtually impossible or excessively difficult” for individuals to enforce their rights under EU law; and
- The fees are indirectly discriminatory on the grounds of several protected characteristics, including sex, ethnicity, disability, sexual orientation and age.
The High Court rejected both grounds, but has given Unison the right to appeal. If Unison is able to produce actual evidence of individuals being prevented from enforcing their rights, rather than relying on Tribunal statistics, it has a chance of success.
The High Court reminded potential claimants that if they cannot afford the fees, but do not qualify for fee remission, they can make an application to the Lord Chancellor and ask him to use his discretion to waive the requirement to pay the fees. This would provide Unison with helpful evidence, should they pursue the judicial review further.
In the meantime, employees continue to use Acas early conciliation to agree settlement before incurring Tribunal fees, while many employers feel more confident in managing their workforce without the threat of litigation that they once encountered.
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