EMPLOYMENT tribunal fees are having a “chilling effect” on access to justice, Britain’s highest court was told yesterday.
Unison is appealing after three court hearings rejected the public-sector union’s arguments that fees of up to £1,200 are disproportionate and discriminatory.
In the first session of a two-day hearing yesterday, Dinah Rose QC, representing the union, said the fees were massively out of step with the relatively small sums awarded by most employment tribunals.
She said the fees, introduced by the Tories and Lib Dems in 2013, “restrict the right of unimpeded access to justice” underpinned in the European Convention on Human Rights.
Ms Rose also argued that they frustrated the intentions of British law and were discriminatory against women and other protected groups.
The union won the right to take the case to the Supreme Court after losing two hearings at the High Court and one at the Court of Appeal. Ms Rose said these courts had applied the “wrong legal test” in adjudicating on whether the fees made it “in practice, impossible” for the poor to seek justice. Instead, they should have applied a basic proportionality test, she argued.
The new fees regime offers a waiver to those with less than £3,000 in savings. But the court heard that this could include property such as “a bicycle or a laptop” and applies to the assets of partners too. Redundancy pay and discrimination settlements are also counted.
Ms Rose argued that a woman who had been made redundant because she was pregnant would be “now asked to gamble almost half” of her payout in order to seek justice, despite having no other income or a job.
“It’s no surprise that’s a gamble that many would not be prepared to take,” she said.
Those seeking redress must now first seek arbitration through Acas. Of those who did, 8,000 said they had not taken their case to a tribunal because they could not afford the fee, according to official data.
Unison argues the number is likely to be even greater. Ms Rose said many who deserved compensation would take a lesser sum at Acas rather than take it to a tribunal “on the basis, contrary to the government’s belief, that a bad deal is better than no deal.”
The court will hear evidence today from the Equality and Human Rights Commission as well as the government’s defence.