The ruling has been eagerly awaited since the challenge was announced shortly after the fee regime came into force last July, under the Employment Tribunal and the Employment Appeal Tribunals Fees Order 2013.
However, the dismissal of the application to the High Court does not rule out a future challenge, says employment law expert Stephen Elliott, a partner at Langleys Solicitors in York.
Mr Elliott said:
“The judgment of the High Court is very interesting because it almost invites another challenge to be made.
“The High Court is saying that in principle the basis of Unison’s challenge may well have been sound but that on this occasion there was not enough available evidence to support it.
“Employers are no doubt breathing a sigh of relief because the fee regime – a real disincentive for employees to bring Tribunal claims – is maintained. But with the door left open to a future challenge, this could be more of stay of execution than a final determination.”
Giving the judgment of the High Court, Lord Justice Moses said: “We think that the fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime.
We would underline the obvious: there is no rule that forbids the introduction of a fee regime.
“The nature of that regime is closely dependent upon economic and social considerations and policy.
“The formation of such policies is itself dependent upon an accurate assessment of income and expenditure and the means of those who wish to use the Tribunal system, and in the light of the need to encourage challenges to discrimination in pursuit of the important goal of equality.
“This court did not find itself in any position accurately to collate the information, still less the evidence, in order to achieve a just resolution. The application is dismissed”.
The Fees Order 2013 means claimants need to pay an issue fee of £160 or alternatively a fee of £250 depending on whether their claim is a Type A or Type B claim.
- Type A claims attract the lower fee and include relatively straightforward claims in relation to unpaid wages, the right to take time off work – for example for antenatal care or for dependant leave – and in respect of redundancy payments.
- Type B claims incur the higher fee. These include unfair dismissal and discrimination claims.
There is then a further fee which is to be paid in advance of a hearing of the matter – that is where the case has not been settled or withdrawn.
Again this falls to the claimant to pay and is in the sum of £230 for a Type A claim and £950 for a Type B claim.
And employers are not exempt from paying fees.
If the parties agree to mediation rather than to a trial of their issues, the employer will be asked to pay a fee of £600.