Costs awards in the Employment Tribunal are similar to lightening – rare, but nasty when it hits and you never see it coming. Last year costs awards were in keeping with the pattern in previous years – awarded in only 1 in 400 cases. This is a relatively low rate, but is this about to change?

The Employment Tribunal does appear to be taking a more robust attitude to costs awards. In Vaughan v London Borough of Lewisham & Ors [2013] UKEAT/0533/12/0606 costs of £87,000 were awarded against the claimant and approved by the EAT. Poor Ms Vaughan (who was unemployed and not wealthy) hadn’t even received a costs warning or deposit order. It was probably small comfort to her that the £87,000 she was ordered to pay was only a third of the respondent’s costs!

In Howman v The Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12/JOJ the unlucky claimant was ordered to pay £43,000 although he had at least received a costs warning. The EAT confirmed the order, with costs on the indemnity basis, but at least asked the original Tribunal to re-consider the fact that the order would wipe him out financially, and cause him to lose his family home.

Financial rigor and less tolerance of poor claims seems to be the order of the day. The only good news is that our FeeSafe insurance policy covers claimants against the risk of adverse costs. Quite a coincidence I should mention it really.

At this time of year there are fireworks everywhere, especially in the High Court, as the union’s wrath against the government has been ignited.

Unison, the trade union has been in the High Court this week seeking Judicial Review of the government’s decision to charge fees in the Employment Tribunal. The fees were of course introduced in August this year. At the time, the government argued that charging Tribunal fees would offset the cost of providing the service but it also admitted that its aim was also to deter Employment Tribunal claims, and Unison claims that already, fewer claims are being brought.

The Judicial Review proceedings centre around the argument that the fees may prevent access to the Employment Tribunal for those who cannot afford them, and this therefore unilaterally deprives people of an effective remedy. This is turn involves an examination of the fee remission system ie. are there those who cannot afford the fees but still cannot benefit from the fee remission arrangements currently in place?

At the very least, no-one would deny that the remission system is cumbersome – not least because a separate application must be made for each fee, rather than only once to cover the whole claim. If a remission application is rejected, the fee must then be paid immediately to avoid the proceedings being struck out.

Most people believe that the current fee regime is unlikely to be held unlawful, although the outcome may be some minor modifications – nevertheless, watch this space. We haven’t the heart however, to point out to the government that the FeeSafe scheme, completely thwarts the aim of the legislation, because it lends claimants the hearing fee, and covers the risk that the fees may not be recovered!

In any event it is a brave new world, where clients must be carefully advised of the risks they face and the market solutions available. Some older employment practitioners must be wishing they could just light the blue touchpaper and retire.

One cannot help noticing that the Ministry of Justice is keeping busy organising (amongst other things) the introduction of the new personal injury protocol for workplace and public liability claims, which must now be channeled through what was previously the electronic portal for road accidents. They are coming under much criticism for not having published the rules due to come into effect on 31 July.

Similarly one cannot turn on the news without noticing that Unison is keeping busy trying to decide how much it should contribute towards the Labour party by way of annual levy and considering whether to change links with the Labour Party going back 100 years.

They both seem to have found time however to engage in a High Court battle over whether the Employment Tribunal fees due to be introduced on the 29th July are lawful.

Unison argues that the high level of fees prevents proper access to European Community employment rights and that it is discriminatory because women (who are generally paid less) are less able to meet the fees than men. In addition they point out that most of the other UK first level Tribunals do not have a fee.

The argument that the new fees present a barrier to justice appears attractive. The need to pay a substantial fee just when claimants can least afford it, must inevitably prevent some claims being made, and the problem the government has is that this is their stated intention!

On the other hand, most people will scrape together at least £250 if they know that they have an entitlement to a much higher sum. Whether the same is true for the much more substantial hearing fee of up to £950 remain to be seen, but the availability of the FeeSafe policy and hearing fee loan may be relevant to the legal argument!

Sadly the general consensus is that the Unison challenge is probably unlikely to succeed, but the political point will have been made!