On Tuesday 16 June the Court of Appeal heard trade union UNISON’s appeal in a judicial review it had taken against the Ministry of Justice in order to challenge the imposition of fees in employment tribunal claims.
A few days earlier, on Thursday 11 June, the MoJ published a two-page paper entitled “Review of the introduction of Employment Tribunal Fees”. This, in essence, set out the terms of reference of the review of the fees introduced in July 2013 and states that “the review is expected to be completed later in the year”.
The MoJ introduced employment tribunal fees in 2013. UNISON argued the level of the fees amounted to a denial of access to justice and had a disproportionate impact on women. Its JR was dismissed at first instance, in February 2014, because it was not at that time possible to determine the impact of the fees. The Court said that “the Lord Chancellor has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect”. Nearly a year and a half later, UNISON now says that there has been an 86% drop in sex discrimination claims and an 80% drop in equal pay claims since the fees were introduced.
Away from tribunals and in respect of civil claims, “enhanced court fees” (ie increased charges for issuing cases) were introduced by the MoJ in the first quarter of 2015. Despite notable concerns about the effects of the fee increases, the legal profession did not, in the end, mount a judicial review against the increases. However and for example the Civil Justice Council pointed out at the time that the MoJ’s assumption that there would be no change in the numbers of civil cases despite the higher fees was “at best, questionable”. It also observed that “the costs of these increases will be passed on by claimants [which is] out of line with the Government’s policy objective of reducing insurance premiums by bearing down on litigation costs.”
The MoJ would appear to have ‘form’ for issuing policy papers in the mouth of a JR hearing about costs – such sequencing may or may not be coincidental. On 27 February 2013 the MoJ published a post-consultation response on fixed recoverable costs for personal injury claims under £25,000. Claimant lawyer associations (APIL & MASS) had launched a challenge by way of JR against the proposals. That was heard in the administrative court two days later, on 1 March 2013.
The 2013 challenge to fixed recoverable costs failed. Whether the present challenge to the employment tribunal fees meets a similar end remains to be seen.
It is hardly difficult to see the irony of a Government department with a stated policy aim of reducing applications for judicial review itself facing significant JRs pursued by large interests within its stakeholder community.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).