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Employment Tribunal fees face legal challenges before formal implementation

In Scotland, law firm Fox and Partners lodged a petition for judicial review seeking an Interim interdict (injunction) to prevent the fees from being introduced on 29 July pending a full court hearing to consider matters.

Fox and Partners argued that amongst other concerns it will make it difficult for lower paid women to bring equal pay claims, deter employees with low value claims which will be outweighed by the fees and the fees will impose a financial burden upon workers who are unfairly dismissed or made redundant.

The initial hearing in these proceedings was held on 4 July at the Court of Session in Edinburgh and the court expedited a full hearing on 9 and 10 July 2013. The Court of Session has refused to grant this application meaning that it is likely tribunal fees will come into effect on 29 July as planned unless a different approach is adopted in the English Courts in respect of an application for judicial review made by UNISON.

The trade union UNISON, which represents more than 1.3 million members, announced in a press release on 17 June 2013 that it intended to apply to the High Court for judicial review of the introduction of employment tribunal fees on the basis that it is in breach of EU law and contrary to the principle of access to justice.

UNISON argues that the introduction of fees which it believes are set at a “prohibitive” level will contravene EU Law which suggests national courts should not make it “virtually impossible, or excessively difficult” to exercise individual rights. Another argument appears to be that the fees will have an indirect discriminatory effect on women on the basis that they typically earn less and may not be eligible for remissions.

It has been reported that the Lord Chancellor has given an undertaking that any fees paid after 29 July will be refunded with interest if it is subsequently found that the scheme is unlawful.

Let’s see how the English Courts deal with the matter but fees look likely to come into effect on 29 July in any event.

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