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.
Simon Pinner spent 15 years handling a large variety of Employment Tribunal claims – the largest involving 150 claimants each seeking 6 years underpayment of shift-work wages! Together with his fellow director Daniel Morris he headed a personal injury department of 85 staff and more recently he and Daniel have directed Box Legal to its current substantial share of the ATE market with well over 250 solicitor firms on the “ClaimSafe” panel.