The Tribunal fees regime looks to continue in its current form and at current levels following the failure of the Judicial Review application by the Unison trade union, although there is scope for review. The High Court rejected grounds that the imposition of the fees regime:
- makes it too difficult and/or more difficult compared to domestic law claims, for prospective Claimants to avail themselves of the rights afforded to them under EU law;
- is in breach of the Public Sector Equality Duty in that there was inadequate and insufficient consultation before implementation; and
- is indirectly discriminatory given the difference in the fees applicable to the type of claim that women are more likely to be making i.e. there is a higher fee for a Type B, equal pay claim.
The writer understands that Unison is to appeal.
It is noteworthy that the High Court’s judgment included a view that an unsuccessful Respondent would normally have to reimburse the Claimant’s issue and hearing fees. This was hitherto not thought to be a discretion that the Employment Judge would seek to exercise as a matter of course.
However, in the Employment Appeal Tribunal case of Portnykh v Nomura UKEAT/0448/13/LA heard on 5 November 2013, the issue and hearing fee of £1,600 was ordered to be paid to the successful Appellant even though the EAT also found that Dr Portnykh had not behaved helpfully.
As a result of these two cases, Respondents are unlikely to be able to dismiss as easily as they might once have done, the Claimant’s argument that if they lose they will have to reimburse the Tribunal fees and it is likely to become a more significant feature of negotiations for settlement.