Newsflash: To fee or not to fee?

The Ministry of Justice has published a factsheet (available here) which summarises the new Employment Tribunal, and Employment Appeal Tribunal, fees structure. This is well worth a quick read, given that the introduction of fees is only a couple of weeks away, on 29 July 2013.

Although the introduction of the fees will definitely go ahead on 29 July, it remains to be seen how long they will be around, as both UNISON and the Scottish law firm Fox and Partners, recently lodged similar applications in the English and Scottish High Courts respectively for judicial review into the introduction of these fees. Their arguments include that the introduction of fees will:

• be contrary to EU law as it would made it “virtually impossible” for workers to exercise their rights under employment law;
• disproportionately affect women and others with ‘protected characteristics’ under equality legislation as they are often amongst the low paid;
• place a financial burden upon workers who are unfairly dismissed or made redundant;
• impose a monetary penalty on employees bringing whistleblowing claims; and
• deter employees with small claims for unlawful deduction of wages, unpaid holidays or failure to pay the national minimum wage from pursing their statutory rights since the fees will be disproportionate to the potential award.

The Scottish judicial review case is expected to have a full hearing on the legality of fees later this year. The Lord Chancellor has conceded that a ruling in Scotland will bind the whole of the UK, not just Scotland. Further, that any fees paid after their introduction will be repaid with interest if fees are found to be unlawful.

Comment: We consider it fairly unlikely that either court is going to be quick to want to unpick the new fees regime, but it remains a possibility. We will let you know the result in a future Newsletter or Newsflash.