In the Court of Session today (Thursday 4 July 2013) , Carol Fox of Fox and Partners, challenged the legality of the UK Government's plans to introduce claimant fees for the Employment Tribunal system.
The proposed introduction of Employment Tribunal Fees was first covered here in March this year.
Today's hearing, at first instance, was heard before Lord Bannatyne.
This action was raised in the Scottish Courts and is running parallel to a similar action brought in the High Court (England and Wales) by the trade union UNISON.
It is important to remember that although similar in nature, both challenges are legally separate.
During the course of the hearing, Lord Bannatyne acknowledged the importance of the questions being asked of the Court and also that time was of the essence because the Regulations (concerning the fees) were to have effect from 29 July.
The Petitioner
Counsel for the Petitioner suggested that there may be other means by which the suggested remedy could be sought, taking into account the time factor and also the potential for lengthy litigation and appeals.
One proposed option was for the UK Government to provide an undertaking to the Court that no fees would be introduced pending the outcome of any litigation. An undertaking would insulate Employment Tribunal litigants from July 29 onwards. Fees would not have to be paid.
If no undertaking was provided, Counsel would move for either suspension or interdict as craved.
The Respondent
Counsel for the Advocate General of Scotland - representing the UK Government - had not received full instructions, because of short notice. Counsel acknowledged that time was a crucial factor and was willing to accommodate the Court and the Petitioner in so far as urgency.
However, Counsel could not offer a view having no instructions concerning any undertaking; but did highlight that a challenge would be brought to the Petitioner's standing (which means entitlement) to bring proceedings.
Both parties acknowledged a lack of certainty around the parallel litigation in the High Court.
Lord Bannatyne made no interim order today, instead arranged for a full hearing on Tuesday and Wednesday of next week.
Equality and Human Rights Commission
A copy of the Petition was served on the EHRC as an interested party.
The EHRC released this statement following today's hearing:
"When Employment Tribunals were established their aim was to be “easily accessible, informal, speedy and inexpensive.” We are concerned that these fees could deter people who have been discriminated against from making claims.The Office of the Advocate General was contacted for a statement and declined to comment.
Our own experience with our helpline and legal casework clearly suggests that people are deterred from pursuing discrimination claims because of the costs involved.
The equality impact assessment carried out by the Ministry of Justice also states that their proposal "ensures that no one is denied access to justice through the introduction of a fee." But at the same time they accept that people with some protected characteristics would be disproportionately affected by fees, regardless of the existence of limited financial support for some.
It’s not a complicated premise. Access to justice should be available to everyone, and not just those who can afford it. When the justice sought relates to inequality and discrimination, fair access to the justice system becomes even more important."
The case will continue on Tuesday 9th July at 10am in Edinburgh.
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