Fall in Employment Tribunal Claims

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FALL IN EMPLOYMENT TRIBUNAL CLAIMS UNDERLINES IMPORTANCE OF JUDICIAL REVIEW THIS WEEK

UNISON, the UK’s largest union, is in the High Court this week arguing its case at a Judicial Review Hearing against the Government’s introduction of Employment Tribunal fees.

The union is publicising new figures from the Government which show a significant drop in the number of individual claims being taken.  The statistics are not straightforward as there are a number of large on-going claims which skew the figures, but the underlying trend is a massive fall in claimants.

Dave Prentis, General Secretary of UNISON said:

“The latest Government statistics show a significant drop in the number of individual claims being taken to employment tribunals, which is precisely why UNISON is challenging these unfair fees.  Putting a price on justice is immoral and allows unscrupulous employers to ride roughshod over the employment rights of their workers.

“Experience shows that the balance in the workplace favours the employers and pricing workers out of court is unfair and underhand.  We are pleased that the Equality and Human Rights Commission are backing our case and intervening in the proceedings tomorrow.

“We believe our arguments are strong and the case is a good one and we look forward to a positive outcome.”

Notes to Editors
The case starts in the High Court in London tomorrow 22 October
https://www.gov.uk/government/publications/employment-tribunal-receipt-s... <https://www.gov.uk/government/publications/employment-tribunal-receipt-s...
Fees were introduced on 29 July and  start at around £160 to issue a claim, rising to £250 a claim depending on the type of claim; which a further hearing fee starting at £230 to £950. Where claims are issued by a group, issue fees range from £320 and £460 (hearing fee). For a simpler “Type A” claim with 2-10 claimants) to £1500 (issue fee) and £5700 (hearing fee) for a more complex “Type B claim” with over 200 claimants.
Until now there has been no charging regime for bringing claims to the Employment Tribunal and Employment Appeal Tribunal.
There is a provision for the remission or part-remission of fees but this is dependent on whether a person is in a couple or has children, or whether they earn below a certain gross annual amount.]
Legal arguments:
 
1.         In accordance with EU law, national courts must not make it virtually impossible, or excessively difficult, to exercise individual rights conferred by European Community law. When considering litigation a reasonable person will calculate whether the likely costs of proceedings outweigh the benefits. [Median awards are low; and even where individuals are successful, research commissioned by the MOJ in 2009 found that of those awarded compensation by the Employment Tribunal, 39% had received nothing from the employer 42 days after judgment. One year after judgment 31% had still been paid nothing. In order to comply with EU law, the right to bring such a claim must be fully effective]. However, the new fee regime will impose fees which will often be greater than the expected compensation, even if such claims were successful. They are set at a level which is prohibitive even to those entitled to partial remissions. Reasonable people will not litigate to vindicate their EU rights in such circumstances.

2.         Fees are not payable at all in most claims brought to the First-Tier Tribunal, a similar tribunal at the equivalent level in the judicial hierarchy to the Employment Tribunal. It is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law.

3.         There has been no proper assessment of the Public Sector Equality Duty. An assessment should then have been made of the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics which would previously have been brought and will now not be pursued.

4.         Indirect discrimination. Eg. Charging prohibitively high fees to pursue such claims will therefore have a disproportionate adverse impact on women. Given that women will not (if they earn an average income) be entitled to any remission of fees in the Employment Tribunal, it is difficult to see how that impact could be said to be a proportionate means of achieving a legitimate aim.
 
Until now there has been no charging regime for bringing claims to the Employment Tribunal and Employment Appeal Tribunal.
There is a provision for the remission or part-remission of fees but this is dependent on whether a person is in a couple or has children, or whether they earn below a certain gross annual amount.]