22nd December 2014

Employment Tribunal Fees Survive – for now

There have been a number of challenges to employment tribunal fees since their introduction in July 2013. A second challenge in the divisional courts was heard in the High Court in England this week. The claim that the fee regime is unfair was once again dismissed, meaning that the fee regime will remain in place.  However there were strong indications in the judgment that the judge expected the decision to be appealed and the fee regime to be challenged again in a higher court.

The claims

The challenge again came from UNISON. They made their claim on two grounds:

  1. Fees are unlawful because they infringe the EU principle of effectiveness. This is because the cost of going to the employment tribunal is said to be such that it is virtually impossible (or at least exceptionally difficult) for a significant number of potential applicants to afford to bring a claim.
  2. Secondly UNISON claimed that the fee scheme indirectly discriminates against women, ethnic minorities and the disabled. As you may be aware, discrimination cases cost more to bring to an employment tribunal. Stats show that women are far more likely to raise a discrimination claim than men, and therefore the fee regime indirectly discriminates against women. UNISON claimed that the same applied to all people likely to bring a claim for discrimination.

The reasons of dismissal of the appeal

UNISON relied heavily on statistics showing the dramatic drop in tribunal hearings. The stats provided from the Tribunals Statistics Quarterly showed a 79% drop for the same period in the previous year. The judge however was not persuaded by the claimant’s reliance on these statistics. He stated that there could be a number of other reasons for the drop, for example changing the qualification period for an employee to be eligible for unfair dismissal from one year to two years or further encouragement via ACAS to settle. He was further not swayed that it was clear in practice that the fee regime made it impossible or exceptionally difficult to bring a claim to the tribunal. He stated that if an employee really wanted to bring a claim then he had 3 months to arrange his funding for it.

With regard to the discriminatory claims, the judge held that the fact that discrimination cases took up more of an employment tribunal’s time was fair reason for the claimant to pay more to be heard. He further stated that the regime was not intended to break up potential claimants into subgroups, but rather apply to all claimants as one.

The future for fees?

Employers should be warned that this ruling definitely does notdraw a line under matters. The judge made a number of references in his judgment suggesting that he expects to see more challenges to employment tribunal fees in the future. It was stated that the fee regime had not yet been running long enough to enable the claimants to prove that it was disproportionately unfair. With reference to the statistics, it was stated that if a claimant could show that he personally found it impossible to pay such fees, then he might have more of a chance of a successful claim. Furthermore UNISON have confirmed that they intend to appeal this decision and leave to appeal has already been granted.

For now, the battle for employers has been won, but the war is most definitely not over.

Andrew Wallace 
Trainee Solicitor – Employment Law



The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.


Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.

Privacy Statement

Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.

© Blackadders LLP 2021

Members of the Law Society of Scotland.

Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.

Back to News & Legal Updates